## Facts

- Eric Voelker was charged with three counts of overdriving, torturing, and injuring animals under New York Agriculture & Markets Law § 353.
- The accusatory instrument alleged that, between February 6, 1996 and August 2, 1996, in Brooklyn, Voelker cut off the heads of three live, conscious iguanas without justification.
- An assistant district attorney swore that he personally viewed a videotape depicting the alleged conduct.
- The building owner stated he viewed the videotape, recognized the room as within the building, and leased the relevant apartment to Voelker during the charged period.
- A witness stated he recorded the videotape from a public-access television broadcast and had seen the same incident aired on the same program on two dates.
- Voelker argued the killings were justified because he intended to cook and eat the iguanas, and any suffering was temporary and unavoidable.
- Voelker also argued that applying § 353 to conduct that was videotaped and televised violated the First Amendment.

## Issues

1. Whether the misdemeanor complaint was facially sufficient under CPL §§ 100.15 and 100.40, including whether alleging the animals were killed “without justification” was impermissibly conclusory.
2. Whether Voelker’s asserted purpose of killing the iguanas for food established justification as a matter of law, requiring dismissal at the pleading stage.
3. Whether prosecuting the alleged animal cruelty violated the First Amendment because the conduct was videotaped and broadcast on public-access television.

## Decision

- The court denied the motion to dismiss.
- The court held the complaint alleged nonhearsay facts establishing reasonable cause to believe Voelker committed violations of Agriculture & Markets Law § 353.
- The court held that whether the killings were “unjustified” was a question for the trier of fact, not resolvable on a pretrial motion to dismiss.
- The court rejected the as-applied First Amendment challenge, holding that broadcasting the alleged conduct did not immunize it from prosecution.

## Legal Principles

- A misdemeanor complaint is facially sufficient when it alleges nonhearsay facts that provide reasonable cause to believe the defendant committed each element of the charged offense.
- Under Agriculture & Markets Law § 353, alleging an unjustifiable killing may be adequately pleaded by describing the conduct and circumstances and asserting the lack of justification; the instrument need not disprove potential defenses at the pleading stage.
- Claims of “justification” that depend on the circumstances and intent generally present factual questions for trial rather than grounds for dismissal on the face of the accusatory instrument.
- The First Amendment does not bar prosecution of generally applicable criminal laws regulating harmful conduct merely because the defendant recorded or broadcast the conduct; criminal acts do not become protected speech by being televised.

## Conclusion

The court allowed the prosecution to proceed, holding that the accusatory instrument sufficiently alleged unjustifiable animal killings under § 353, that any asserted justification was for the factfinder, and that televising the alleged cruelty did not create First Amendment immunity from criminal liability.


People v. Voelker, 172 Misc. 2d 564, 658 N.Y.S.2d 180 (N.Y. Crim. Ct. 1997)