                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 2, 2016                        107302
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

DAVID MOORS,
                    Appellant.
________________________________


Calendar Date:    April 21, 2016

Before:    McCarthy, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                               __________


      Mischel & Horn, PC, New York City (Cynthia Feathers, Glens
Falls, of counsel), for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                               __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered January 15, 2015, convicting defendant
following a nonjury trial of the crime of aggravated cruelty to
animals.

      While on a hunting trip on his sister's property, defendant
used a bow and arrow to shoot and kill Clara, the neighbors'
family dog.1 As a result, defendant was charged with, among

    1
          Clara was a 38-pound Australian Shepard mix.
                              -2-                107302

other things, aggravated cruelty to animals. Following a nonjury
trial, County Court convicted defendant of aggravated cruelty to
animals, sentenced him to six months in jail and five years of
probation – requiring defendant to complete 250 hours of
community service and surrender his weapons and his New York
hunting license as conditions of the probation – and ordered
defendant to pay $2,363 in restitution. Defendant now appeals,
and we affirm.

      Defendant argues that the verdict was not supported by
legally sufficient evidence2 or was against the weight of the
evidence because he did not kill Clara in a depraved or sadistic
manner. We disagree. As relevant here, a defendant is guilty of
aggravated cruelty to animals if "he or she intentionally kills
. . . a companion animal with aggravated cruelty" and with no
justifiable purpose (Agriculture and Markets Law § 353-a [1]; see
People v Facey, 127 AD3d 1256, 1256-1257 [2015]). Aggravated
cruelty is defined as conduct which is either "(i) intended to
cause extreme physical pain; or (ii) is done or carried out in an
especially depraved or sadistic manner" (Agriculture and Markets
Law § 353-a [1]).3
      A police officer who interviewed defendant after the
killing testified that defendant admitted that he knew he should


    2
        Although this argument is unpreserved based upon
defendant's general trial order of dismissal, we necessarily
address the adequacy of the evidence as to the elements of the
crime in our weight of the evidence review (see People v
Danielson, 9 NY3d 342, 349 [2007]; People v Cruz, 131 AD3d 724,
725 [2015], lv denied 26 NY3d 1087 [2015]).
    3
        At trial, defendant conceded that the proof established
that he intended to kill Clara and that she was a companion
animal. Otherwise, in reaching its verdict, County Court
explicitly found that the proof did not support defendant's
conviction on a theory that he acted with aggravated cruelty by
intending to cause Clara extreme physical pain.
                              -3-                107302

not have shot Clara. A veterinarian who had attempted to treat
Clara explained that she had been shot in the left abdomen and
had died as a result of the wound and related internal bleeding.
According to defendant, while he was in his hunting blind, he
observed Clara with his binoculars, replaced the broadhead arrow
that was in his bow with a field tip arrow and then shot Clara.
Defendant conceded that he knew Clara was not a coyote and that
"everything about her appearance" was consistent with that of a
domesticated dog. Further proof was introduced that supported a
reasonable inference that Clara was facing away from defendant
when he shot her and that defendant's choice in replacing a
larger broadhead arrow with a smaller field tip arrow was likely
to save defendant money while risking a longer and more painful
death for Clara. Additional proof established that Clara
suffered for at least 20 minutes after she was shot, and that
period began with her "screeching" and "flopping" on the ground
and ended with her "choking and . . . gurgling" in the back end
of her owners' vehicle as she was rushed to an animal hospital.
Given the foregoing, we find adequate proof to support the
conclusion that defendant carried out his killing of Clara in an
especially depraved or sadistic manner by shooting her in the
abdomen with an arrow that was likely to prolong her suffering
(see Agriculture and Markets Law § 353-a [1]; see generally
People v Degiorgio, 36 AD3d 1007, 1009 [2007], lv denied 8 NY3d
921 [2007], cert denied 552 US 999 [2007]). Further, we defer to
County Court's determination to credit the aforementioned
evidence rather than other self-serving testimony that defendant
provided, and therefore we conclude that the verdict is not
against the weight of the evidence (see People v Augustine, 89
AD3d 1238, 1242 [2011], affd 21 NY3d 949 [2013]; People v
Degiorgio, 36 AD3d at 1009). Finally, we perceive no abuse of
discretion or extraordinary circumstances that would warrant any
reduction in defendant's sentence, which included a jail term
less than the presumptive statutory minimum (see Penal Law
§ 70.00 [2] [e]; [3] [b]; [4]; People v Lohnes, 112 AD3d 1148,
1150 [2013]).
                              -4-                  107302

     Egan Jr., Lynch, Devine and Mulvey, JJ., concur.




      ORDERED that the judgment is affirmed, and matter remitted
to the County Court of Ulster County for further proceedings
pursuant to CPL 460.50 (5).




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
