## Facts

- Susan Mahoney rented a house in Tuxedo, New York, where at least two dogs were kept, including a Great Pyrenees named Casey.
- On September 28, 2002, the landlord entered the home to show it to a prospective tenant and found feces covering the first floor, a small dog running loose, and no sign of Mahoney.
- Several days later, the landlord returned with Humane Society personnel and observed no electricity, garbage throughout the home, and numerous piles of dog feces; the small dog had no food or water.
- In the basement, they found Casey lying in blood, too weak to move, in an area covered with urine and numerous piles of feces, including old, moldy feces; there was no water and very little food.
- Casey had open, bleeding, ulcerated sores; she was removed for treatment but died that night.
- Evidence showed Mahoney had been told by a veterinarian on July 31, 2002 that Casey had an ulcerated tumor, missed a scheduled follow-up appointment, and did not obtain further veterinary treatment.
- Mahoney was charged with one count under N.Y. Agriculture and Markets Law § 353 for depriving an animal of necessary sustenance.

## Issues

1. Whether the trial court erred by instructing the jury that “necessary sustenance” under N.Y. Agriculture and Markets Law § 353 includes veterinary care and shelter adequate to maintain health and comfort, distinct from “food or drink.”
2. Whether a sentence requiring incarceration on four consecutive weekends was excessive.

## Decision

- The Appellate Term affirmed the conviction.
- The court held the jury instruction defining “sustenance” to include veterinary care and adequate shelter was proper under § 353.
- The court held the sentence, including four consecutive weekends of incarceration, was not excessive, and the sentencing court was not bound by the Probation Department’s recommendation.

## Legal Principles

- Under N.Y. Agriculture and Markets Law § 353, “necessary sustenance” is not limited to food and water and may include necessary veterinary care and adequate shelter sufficient to maintain an animal’s health and comfort.
- A jury charge that distinguishes “sustenance” from “food or drink” and defines it to include veterinary care and adequate shelter is permissible when it accurately conveys statutory duties and does not mislead the jury.
- A sentence within statutory limits will not be disturbed as excessive absent a showing warranting appellate intervention; a sentencing court is not required to follow probation recommendations.

## Conclusion

The court affirmed Mahoney’s animal-cruelty conviction and sentence, holding that § 353 permits instructing jurors that “necessary sustenance” includes veterinary care and adequate shelter, and concluding that four consecutive weekends of incarceration was not excessive on this record.


People v. Mahoney, 9 Misc. 3d 101, 804 N.Y.S.2d 535 (App. Term 2d Dep’t 2005)