63 N.Y.2d 270 | NY | 1984
Lead Opinion
OPINION OF THE COURT
In the two appeals before us, elderly victims of crime — an attempted purse-snatching, and a robbery and burglary — some days after these incidents, succumbed to heart attacks, having shown no immediate signs of heart trouble. The central issue is whether there was sufficient proof to support the fact-finders’ determinations that the
MATTER OF ANTHONY M.
Anthony M., a 12 year old, in the early evening of April 17, 1982, was seen loitering near a subway entrance in midtown Manhattan half an hour before the incident and again observed there, for about five minutes, when two elderly women passed, one of them the 83-year-old victim, Lee Gibson. In a matter of seconds, Anthony crouched behind her, grabbed her handbag and, when Mrs. Gibson would not release the bag, he pulled the strap with such force that she was whirled around, thrown to the sidewalk on her left side, and dragged a short distance, whereupon Anthony let go and disappeared into the subway station. Mrs. Gibson was taken to the hospital, where a fractured left hip and other bruises were diagnosed. She was also that day examined by her cardiologist, Dr. Jerome Zacks, who recommended transfer to another hospital for surgery involving the implantation of a pin in order that she might walk again. In the initial days following the incident, she exhibited no symptoms of heart trouble, despite a medical history that included hypertension, long-standing angina (both believed to be under control), an enlarged heart, arteriosclerosis of the coronary artery and vascular disease. After hip surgery was performed, on April 19, in the second hospital, her condition progressed normally.
On April 25, Mrs. Gibson developed congestive heart failure, and two days later died of a myocardial infarction.
At a fact-finding hearing on charges against Anthony involving manslaughter, attempted robbery and assault, three medical experts testified regarding the cause of Mrs.
Finding that Anthony had created a substantial and unjustifiable risk when he selected Mrs. Gibson as his victim, that he was heedless of the peril created by his violence, and that his criminal act set in motion the sequence of events that led inexorably to her death, the trial court found that Anthony had committed acts that if done by an adult would constitute the crimes of attempted robbery in the first degree, assault in the first degree, and manslaughter in the second degree, and placed him with the Division for Youth, Title III, for 18 months. The Appellate Division affirmed, without opinion. Only the finding regarding manslaughter is challenged on appeal.
CABLE AND GODBEE
Arnold Weiner, an 89-year-old retired diamond merchant, and his wife, Anna, on July 23,1980 were robbed in their Manhattan apartment, threatened with a knife, bound, and left lying facedown on their living room floor.
A man identified as defendant Cable was seen entering the Weiners’ apartment building early in the morning of July 23. His girlfriend, defendant Godbee, who had recently begun work as a maid for the Weiners, followed moments later. Defendants rode up together in the elevator which stopped at the tenth floor, where the Weiners lived. Godbee was admitted to the Weiners’ apartment, but went right out to deliver a newspaper to a neighbor, leaving the apartment door unlocked, as she had done on a prior occasion. When she returned, she discovered that a male intruder (found by the jury to be Cable) had tied up Weiner, and was in the process of tying up Mrs. Weiner. Godbee, according to her statement to the police, started to call for help, but was threatened by the intruder, who proceeded to take several items of jewelry. Mrs. Weiner later awakened to find herself and her husband, both bound, on the living room floor, her husband bleeding from the mouth. She asked Godbee, who was seated in a chair, to call the superintendent, but Godbee said that she had already called the police. Some 20 minutes after he had entered, Cable was seen leaving the building, attempting to hide his face. Several of the items of jewelry were, later that day and the next, sold by Cable.
Weiner that afternoon was taken to Roosevelt Hospital by a neighbor, treated for the cuts and bruises, and returned home. The next day, July 24, he visited his personal physician, Dr. Walter Liebling, complaining of pains in his left lateral lower chest, just above the waistline; no EKG was taken. On July 25 he again complained of not feeling well and spent the day in bed. Late that day, some 56 or 57 hours after the theft, Weiner suffered heart failure and died.
At the trial of defendants for felony murder, depraved indifference murder, robbery and burglary, Dr. Liebling testified that, despite excess weight and arteriosclerosis, Weiner prior to July 23 was in “good general health.” During the four years of their relationship, Dr. Liebling had never detected any sign of heart disease in Weiner, and he had no serious illness.
Defendants were convicted of felony murder, manslaughter in the second degree, robbery in the first and second degrees, and burglary in the second degree. The Appellate Division, two Justices dissenting, reversed the convictions for felony murder, manslaughter and robbery in the first degree, and dismissed the charges underlying them.
In both appeals, defendants urge — as the Appellate Division majority concluded in Cable and Godbee — that
For criminal liability to attach, a defendant’s actions must have been an actual contributory cause of death, in the sense that they “forged a link in the chain of causes which actually brought about the death” (People v Stewart, 40 NY2d 692, 697). “An obscure or a merely probable connection between an assault and death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide” (People v Brengard, 265 NY 100, 108). A defendant’s acts need not be the sole cause of death; where the necessary causative link is established, other causes, such as a victim’s preexisting condition, will not relieve the defendant of responsibility for homicide (see People v Kane, 213 NY 260, 273). By the same token, death need.not follow on the heels of injury. Even an intervening, independent agency will not exonerate defendant unless “the,death is solely attributable to the secondary agency, and not at all induced by the primary one” (People v Kane, 213 NY 260, 270, supra). An injury may trigger immediate measurable deterioration and a gradual process of dying for which defendant is responsible (People v Brengard, 265 NY 100, 104-105, supra; see, also, People v Roberts, 73 AD2d 954), but that is not to say that a victim who evidences no immediate decline cannot just as surely have been set by defendant’s acts on a certain course to death.
Though sometimes perceptible to lay witnesses (see People v Brengard, 265 NY 100, 105, supra), the progression from injury to death, often unseen and not readily comprehended, will generally be a subject for expert medical opinion. To establish a causal connection, conclusions which are only “contingent, speculative, or merely possible” (Matter of Burris v Lewis, 2 NY2d 323, 327) will not suffice, but neither is absolute certainty and the exclusion
Godbee and Anthony M. raise several additional issues with respect to sufficiency of the evidence and fairness of the trials.
Anthony M. argues that, regardless of causation, there was insufficient proof that he possessed the necessary mental state for manslaughter. We disagree. Viewed in the light most favorable to the prosecution, there was sufficient proof in the circumstances of the incident for the fact-finder to conclude that Anthony was aware of and consciously disregarded a substantial and unjustifiable risk that death would result from his actions. (See People v Heinsohn, 61 NY2d 855; Penal Law, § 125.15, subd 1.) The evidence shows that Anthony made a careful, conscious choice when, after a period of watching and waiting in front of the subway station, he marked as his intended victim a greyhaired, five-foot, two-inch, elderly woman, obviously selected from the passing crowd because of her condition, as the easiest prey. We must agree with the courts below that having sought out such a victim, Anthony is to be held responsible for the unusual peril he
As to Godbee’s contention that the evidence at most showed her “guilty knowledge and negative acquiescence,” and thus was legally insufficient to convict her, as an accessory, of robbery, burglary and felony murder, we agree with the Appellate Division that the evidence was sufficient to justify the jury’s conclusion that she was an accessory. Viewed in the light most favorable to the People (People v Malizia, 62 NY2d 755, 757; People v Kennedy, 47 NY2d 196, 203; People v Benzinger, 36 NY2d 29, 32), the evidence demonstrated that she intentionally aided Cable in the conduct constituting the offense (Penal Law, § 20.00): Godbee and Cable, her boyfriend, arrived in the building at approximately the same early morning hour and rode up in the elevator, which stopped at the Weiners’ floor; she left the Weiners’ door unlatched, and on finding an intruder in the apartment failed to alert the superintendent or doorman, who might have stopped an intruder leaving the building, but instead called the police, thus affording Cable an opportunity to escape; she gave the police a misleading description of Cable, and thereafter moved without leaving a forwarding address. That each act could, viewed separately, perhaps be subject to an innocent explanation does not at this juncture entitle Godbee to upset the jury’s finding that she intentionally aided Cable in the commission of robbery, burglary and felony murder.
Although the evidence against Godbee was sufficient, we agree, for the reasons stated by the Appellate Division, that the trial court erred in refusing to charge the affirmative defense to felony murder. We cannot disregard this error. The jury convicted Godbee of reckless manslaughter (as a lesser included offense of depraved indifference murder), thereby demonstrating its acceptance of the People’s contention that Godbee caused the victim’s death by soliciting, requesting, commanding, importuning or intentionally aiding Cable to engage in such conduct (Penal Law, § 20.00). This verdict would have been unreconcilable with acquittal of felony murder based on the affirmative defense
Finally, Godbee contends that it was reversible error for the trial court to have denied her request for an adjournment, made both during and at the conclusion of Dr. Hyland’s testimony, so that she could “be in a position to secure” another expert witness in surrebuttal. The court rejected the request, on the basis that it came at “the nth hour” after “ample opportunity” and that such testimony would be purely cumulative, each side having already produced two medical expert witnesses on the issue of causation. The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court (People v Singleton, 41 NY2d 402, 405; People v Oskroba, 305 NY 113, 117). Here, no surrebuttal witness was identified, the Trial Judge’s expressed concern that
Accordingly, in Matter of Anthony M., the order of the Appellate Division should be affirmed. In People v Cable and Godbee, the orders of the Appellate Division, insofar as appealed from, should be reversed, the convictions and sentences for felony murder, second degree manslaughter and first degree robbery reinstated, and the case remitted to the Appellate Division, First Department, for consideration of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]). As to defendant Godbee, in view of the charge error described above, unless the Appellate Division on consideration of the facts dismisses the felony murder charge against her, that court is directed to reverse God-bee’s felony murder conviction and order a new trial on that count. As to Godbee’s manslaughter conviction, since manslaughter was submitted as a lesser included offense of depraved indifference murder, on which the jury acquitted, unless the Appellate Division dismisses her manslaughter conviction on its review of the facts, the court should vacate her second degree manslaughter conviction, without prejudice to an application by the People for leave to resubmit to a Grand Jury the facts upon which that conviction was based (see People v Mayo, 48 NY2d 245, 253).
. It was stipulated that Dr. Geeben Natarajan, Deputy Medical Examiner of New Jersey, would have given the same testimony as Dr. Factor, for defendant Cable.
. [4] Godbee’s contention in this court is not so much that the evidence was improper rebuttal, particularly since (a) it responded to the scientific observations given by the defense expert; (b) permitting testimony, even if not technically rebuttal, was not shown to have been an abuse of discretion (CPL 260.30, subd 7; see, also, People v Harris, 57 NY2d 335, 345-346, cert den 460.US 1047); and (c) no objection was asserted on the basis of improper rebuttal until the" witness had completed direct, cross and redirect examination, when a motion to strike was made (see Richardson, Evidence [Prince, 10th ed], § 537, p 529). Godbee’s contention — which we reject — is that since the prosecution was allowed rebuttal, the defense had an absolute right under CPL 260.30 (subd 7) to present surrebuttal testimony in the person of another medical witness.
Dissenting Opinion
Meyer, J.
(dissenting in part). Respectfully I dissent from so much of the majority opinion as holds that denial of the request by defendants Godbee and Cable that they be
At the conclusion of Dr. Hyland’s direct testimony, defendant Godbee’s attorney asked for a 10-minute recess, stating “This witness came in and testified what other doctors consistently denied.” When the recess was over and before the jury returned, the Trial Judge asked whether the attorney had an application. Told that there would be “no application at this time,” the Judge responded, “You propose to have an application for a continuance to allow you to bring in another expert witness, isn’t that it?”, and, receiving a positive response, rejoined, “Well I will tell you now that I deny it * * * I consider it cumulative. You have had ample opportunity. We are at the nth hour, that’s it.”
Upon completion of the cross-examination the jury was sent to lunch. At that point defendant Godbee’s attorney asked for “a continuance until tomorrow morning so that we can be in a position to secure other testimony.” Again the request was denied as “fruitless and cumulative in essence”. Counsel then moved for a mistrial, noting that the information about which the rebuttal witness might testify had not been disclosed to him prior to the witness being called and that the rebuttal testimony “was substantially different from that of all the other three experts”. He asked that “under the circumstances, we should be given an opportunity to”, only to be cut off in midsentence by the Judge’s interjection, “You propose to protract this indefinitely?” On return from luncheon recess counsel moved to strike Dr. Hyland’s testimony, pointing out that because he was “the first doctor, indeed, to testify as to ascertaining medically reasonably certain connection between the alleged incident, the cause of death, that his testimony was more properly elicited on direct examination.” That motion too was denied.
The original objection made clear that Dr. Hyland had testified to what the other doctors had consistently denied and thus went beyond the scope of proper rebuttal
True, as noted in the majority’s footnote 2, Godbee’s attorney’s request was for a continuance until the next morning “so that we can be in a position to secure other testimony”, but Dr. Hyland’s evidence being before the jury, counsel was not obligated to move to strike as improper rebuttal rather than seék a continuance in order to produce counter testimony. And it being clear that defense counsel had not been advised prior to Dr. Hyland’s appearance what he would testify about, they cannot be faulted for not having a witness immediately available and, therefore, requesting an overnight continuance instead of “the opportunity to present a particular witness in surrebuttal” (as the majority’s n 2 suggests) if, indeed, that was not what would have been said had counsel been permitted to complete his request that “under the circumstances, we should be given an opportunity to” (cf. People v De Jesus, 42 NY2d 519, 526).
In sum, even if the right given a defendant by the first sentence of CPL 260.30 (subd 7) to present surrebuttal testimony after prosecution rebuttal which goes beyond the proper scope of rebuttal be considered as a matter within the Trial Judge’s discretion, “if there is a flagrant abuse of this discretion, the wrong may be redressed upon appeal” (Richardson, Evidence [Prince, 10th ed], § 459, p 450). And since “Few rights are more fundamental than that Of an accused to present witnesses in his own defense” (Chambers v Mississippi, 410 US 284, 302) and “mere inconvenience is not sufficient ground for denying an adjournment when to do so would abridge a basic right” (People v Foy, 32 NY2d 473, 477), I have no hesitancy in concluding, particularly in light of the close and difficult
In Matter of Anthony M.: Order affirmed, without costs.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.
In People v Cable and Godbee: Orders insofar as appealed from reversed, convictions and sentences for felony murder, second degree manslaughter and first degree robbery reinstated and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur with Judge Kaye; Judge Meyer dissents in part and votes to reverse and order a new trial as to both defendants in a separate opinion.
. Although before us only Godbee has briefed the point, defendant Cable’s attorney joined in the requests for continuance, for a mistrial, and to strike Dr. Hyland’s testimony. A new trial should, therefore, be had as to both defendants.
. The People’s reply brief concedes that “portions of Dr. Hyland’s testimony were more properly part of the People’s direct case”.