Thursday, July 3, 2008

Staten Island Pit Bull Update

According to an article in today’s Staten Island Advance,

the dog owner has been charged in the mauling with second-degree assault, a felony punishable by up to seven years in prison if convicted at trial.

Officials are charging him under the subsection in the law that defines second-degree assault as when someone "recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument."

The DA is grandstanding. It is unlikely these charges will stick. First, they’re mostly likely to be plea-bargained way down. Second, the prosecutors are on shaky legal ground. In doing some quick legal research, the only case we found that addresses this point holds that a dog (in this case a German shepherd) is not a “deadly weapon”, at least for purposes of the (similar) robbery statute. People v. Torrez, 86 Misc.2d 369, 382 N.Y.S.2d 233 (Sup. Ct., Bronx Cty. 1976).

We also found only three reported New York cases in which a defendant was accused of assault with a dog--and one would expect that if someone were convicted, he or she would appeal, and the appellate decision would be reported. In People v. Gottlieb, 130 A.D.2d 202, 517 N.Y.S.2d 978 (1st Dept. 1987), an unleashed sheepdog attacked a woman in a laundry room. The conviction was reversed. In People v. Thompson, 161 A.D.2d 236, 555 N.Y.S.2d 266 (1st Dept. 1990), “the assault charge brought against defendant was predicated on the theory that he had deliberately loosened the leash to enable the dog [a pit bull terrier] to reach” the victim. That conviction was reversed too. The only case we found where charges of assault with a weapon (another pit bull) finally stuck was People v. Hubert, 237 A.D.2d 756, 655 N.Y.S.2d 140 (3d Dept. 1997, but there the defendant held onto the leash as the dog menaced a policeman. So while this will not be the first time a dog owner has been charged with a crime when his unleashed, dog bites someone, we could find no reported New York case where such a dog owner was convicted of the crime and the conviction stuck.

As we said, unless the victim dies, we don’t think the law is going to make this dog owner serve the time he deserves. The law needs to be changed to deter dog owners from letting their dogs off-leash illegally.

And see, they’re not all pit bulls.

* * * * * * * * * * *

A correspondent sent the following email to Councilman Peter Vallone:

I just read that in the wake of yesterday's attack by two pit bulls on Staten Island, you have proposed legislation that would track New York City's pit bulls.

Your focus on the pit bull aspect of the attack is mistaken. I don't know whether pit bulls are good or bad. I do know that this attack could have occurred--and similar attacks have occurred--with dogs other than pit bulls. I also know that this attack could NOT have occurred had the dogs been leashed. According to news reports, these dogs were perpetually permitted to run unleashed. The owner was picked up and "charged" with having unleashed and unlicensed dogs. But neither of these is a crime--they are both violations, punishable by small fines. In short, the owner is likely to escape punishment for these attacks.

If an illegally unleashed dog attacks another dog, because of a quirk in state law, the situation is even worse. In essence, if this happens outside New York City, (1) you can call the police and (2) if you have to injure or kill the other dog to defend your dog, you can't be held civilly liable. By contrast, in New York City, (1) the police can't intervene and (2) if you attack the attacking dog, you're on your own. It doesn't matter if the dog that attacks your dog is unleashed; you have essentially no recourse. You can find a full discussion of this problem at http://credo-ny.blogspot.com/2008/01/what-to-do-if-loose-dog-attacks-your.html,

Something needs to be done to deter people from letting their dogs run unleashed, leaving the dogs free to attack people--or other dogs.

You should sponsor legislation--or use your influence to get the state legislature to enact legislation---that

(1) if an illegally unleashed dog attacks a human being, that attack is a crime, punishable in the same degree as if the owner had committed the attack, and

(2) makes New York City subject to the same rules as other areas outside of New York City for dog-on-dog attacks where the attack is by an illegally unleashed dog on a leashed dog.

But we suspect this suggestion will go nowhere. Councilman Vallone is running for mayor and is not likely inclined to make waves.

2 comments:

Monica McLaughlin said...

The man attacked has since died. Does this change your legal position any? Thank you.

credo-ny said...

Not at all; see our August 22 post. The point we made originally is that prosecutors would have a tough time making charges stick--unless the victim died of his injuries. And he did. So now they ought to be able to get something to stick, but we'd bet it will be short of second degree murder, and probably short of any type of homicide.