People v Gaworecki

2019 NY Slip Op 05725 [174 AD3d 1143]

July 18, 2019

Appellate Division, Third Department

As corrected through Wednesday, September 4, 2019

[*1]

The People of the State of New York,Appellant, v Richard B. Gaworecki, Respondent.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forappellant.

Gorman Law, PLLC, Binghamton (Veronica M. Gorman of counsel), for respondent.

Egan Jr., J.P. Appeal from an order of the County Court of Broome County (Dooley, J.),entered December 19, 2017, which partially granted defendant's motion to dismiss theindictment.

Defendant was charged in a four-count indictment with the crimes of criminal sale of acontrolled substance in the third degree, manslaughter in the second degree, criminal possessionof a controlled substance in the seventh degree and criminally possessing a hypodermicinstrument. With respect to the manslaughter count, the People alleged that defendant sold thevictim heroin, which resulted in his subsequent overdose and death. Defendant thereafter filed anomnibus motion seeking to, among other things, dismiss the indictment, alleging that theevidence before the grand jury was not legally sufficient to establish the charged offenses or anylesser included offenses and that the grand jury instructions were improper. County Courtpartially granted defendant's motion by dismissing the count of manslaughter in the seconddegree. The People appeal.

In determining whether dismissal of a count or counts of an indictment is warranted on legalsufficiency grounds, the court must view the evidence in a light most favorable to the People andassess whether the facts presented to the grand jury, if accepted as true, along with the logicalinferences to be drawn therefrom, are legally sufficient to establish each and every element of theoffense or offenses charged (see CPL 70.10 [1]; 210.20 [1] [b]; People v Grant, 17 NY3d 613, 616[2011]; People v Deegan, 69 NY2d 976, 978 [1987]; People v Carlin, 173 AD3d 1363, 1363-1364 [2019]). "In thecontext of grand jury proceedings, legal sufficiency means prima facie proof of the crimescharged, not proof beyond a reasonable doubt" (People v Mills, 1 NY3d 269, 274 [2003] [internal quotation marksand citations omitted]; see People v Swamp, 84 NY2d 725, 730 [1995]; People v Park, 163 AD3d 1060,1061-1062 [2018]). Thus, "if the [People have] established a prima facie case, the evidence islegally sufficient even though its quality or weight may be so dubious as to preclude indictmentor conviction pursuant to other requirements" (People v Jennings, 69 NY2d 103, 115[1986] [internal quotation marks and citations omitted]; see People v Deegan, 69 NY2dat 979; People v Waite, 108 AD3d985, 985 [2013]; People vRaymond, 56 AD3d 1306, 1307 [2008], lv denied 12 NY3d 820 [2009]).

As relevant here, in order to find a defendant guilty of manslaughter in the second degree, thePeople are required to show that he or she "recklessly cause[d] the death of another person"(Penal Law § 125.15 [1]). "A person acts recklessly with respect to a result or to acircumstance . . . when he [or she] is aware of and consciously disregards asubstantial and unjustifiable risk that such result will occur or that such circumstance exists"(Penal Law § 15.05 [3]). The testimony before the grand jury established thatdefendant sold the victim five blue packets of heroin on July 20, 2017. Less than an hour afterthe sale, defendant sent a text message to the victim stating, "I told you bro. I hooked you up. Justbe careful." Later that afternoon, the victim's ex-girlfriend snorted half of one of the blue packetsof heroin but found it to be "really strong and potent" and flushed the rest down thetoilet.^[FN*] Another ofdefendant's customers purchased two blue packets of heroin from defendant, but subsequentlyrefused to purchase any additional heroin from him, specifically informing defendant that theheroin in the blue packets was "strong and it almost killed [him]." The very nextmorning—less than two days after purchasing the blue packets of heroin fromdefendant—the victim was found dead. Police searching the victim's bedroom foundempty blue and green packets of heroin, and an autopsy performed on the victim revealed thepresence of "lethal" levels of morphine, the compound that is produced when the bodymetabolizes heroin, and 6-Monoacetylmorphine, a chemical byproduct that is specific to heroin,in the victim's blood. The coroner determined that the cause of the victim's death was "herointoxicity acute." Following the victim's death, defendant told police officers that he had warnedthe victim "to be wicked careful." Upon his arrest, defendant was found to be in possession ofblue packets containing both heroin and fentanyl.

Although the People have the burden of proving at trial that a defendant is guilty ofmanslaughter in the second degree beyond a reasonable doubt, "legal sufficiency in the context ofa grand jury proceeding does not require such a high standard of proof" (People v Waite,108 AD3d at 987; see People v Swamp, 84 NY2d at 732; People v Spratley, 152 AD3d 195,197 [2017]; People v Roth, 141AD3d 1090, 1091 [2016], lv denied 28 NY3d 936 [2016]). Viewing the evidence ina light most favorable to the People, we find that the testimony before the grand jury with respectto defendant's conduct, the surrounding circumstances and the reasonable inferences to be drawntherefrom provided sufficient factual support for each and every element of the charge ofmanslaughter in the second degree (see People v Galle, 77 NY2d 953, 955-956 [1991];People v Waite, 108 AD3d at 987). Given defendant's knowledge of the potency of thedrugs that he was distributing and their potential lethality, it is evident that the nature of the riskinvolved was of such degree "that defendant's failure to perceive it constituted a gross deviationfrom the standard of care that a reasonable person would observe in the situation" and that hisactions were a sufficiently direct cause of the victim's death for him to face the judgment of ajury (People v Galle, 77 NY2d at 955-956 [internal quotation marks, brackets andcitations omitted]; see People v Cruciani, 36 NY2d 304, 305-306 [1975]; People v Li, 155 AD3d 571,574-577 [2017], lv granted 31 NY3d 1119 [2018]; People v Roth, 141 AD3d at1091; compare People v Bianco, 67AD3d 1417, 1418-1419 [2009], lv denied 14 NY3d 797 [2010]; People vPinckney, 38 AD2d 217, 218 [1972], affd 32 NY2d 749 [1973]).

Lynch and Pritzker, JJ., concur.

Mulvey, J. (dissenting). Because the evidence before the grand jury was legally insufficientto support the count of manslaughter in the second degree or the lesser included offense ofcriminally negligent homicide, County Court properly dismissed that count. "To dismiss anindictment or counts thereof on the basis of insufficient evidence before a grand jury, a reviewingcourt must consider whether the evidence viewed in the light most favorable to the People, ifunexplained and uncontradicted, would warrant conviction by a [trial] jury" (People v Park, 163 AD3d 1060,1061 [2018] [internal quotation marks and citations omitted]). "In the context of grand juryproceedings, 'legal sufficiency means prima facie proof of the crimes charged, not proof beyond areasonable doubt' " (People vMills, 1 NY3d 269, 274 [2003], quoting People v Bello, 92 NY2d 523, 526[1998]; see People v Park, 163 AD3d at 1061; People v Roth, 141 AD3d 1090, 1090 [2016], lv denied 28NY3d 936 [2016]; People v Waite,108 AD3d 985, 985 [2013]). "The reviewing court's inquiry is limited to whether the facts, ifproven, and the inferences that logically flow from those facts supply proof of every element ofthe charged crimes, and whether the [g]rand [j]ury could rationally have drawn the guiltyinference" (People v Bello, 92 NY2d at 526 [internal quotation marks and citationsomitted]; accord People v Park, 163 AD3d at 1061).

Pursuant to Penal Law § 125.15 (1), "[a] person is guilty of manslaughter in thesecond degree when . . . [h]e [or she] recklessly causes the death of another person.""A person acts recklessly with respect to a result . . . described by a statute definingan offense when he [or she] is aware of and consciously disregards a substantial and unjustifiablerisk that such result will occur . . . . The risk must be of such nature and degree thatdisregard thereof constitutes a gross deviation from the standard of conduct that a reasonableperson would observe in the situation" (Penal Law § 15.05 [3]; see People v Li, 155 AD3d 571,574 [2017], lv granted 31 NY3d 1119 [2018]). Thus, to establish that a defendant isguilty of manslaughter in the second degree, the People must prove "the creation of a substantialand unjustifiable risk; an awareness and disregard of the risk on the part of [the] defendant; and aresulting death" (People v Licitra, 47 NY2d 554, 558 [1979]; accord People v Raymond, 56 AD3d1306, 1307 [2008], lv denied 12 NY3d 820 [2009]; People v Phippen, 232AD2d 790, 790 [1996]). Criminally negligent homicide is a lesser included offense ofmanslaughter in the second degree (seePeople v Erb, 70 AD3d 1380, 1380 [2010], lv denied 14 NY3d 840 [2010]).Pursuant to Penal Law § 125.10, "[a] person is guilty of criminally negligenthomicide when, with criminal negligence, he [or she] causes the death of another person." "Aperson acts with criminal negligence . . . when he [or she] fails to perceive asubstantial and unjustifiable risk that" a specified result will occur, where that risk is "of suchnature and degree that the failure to perceive it constitutes a gross deviation from the standard ofcare that a reasonable person would observe in the situation" (Penal Law § 15.05[4]; see People v Galle, 77 NY2d 953, 955-956 [1991]).

Causation is an essential element of both manslaughter in the second degree and criminallynegligent homicide (see People v Galle, 77 NY2d at 955; People v Raymond, 56AD3d at 1307; People v Phippen, 232 AD2d at 791; see also People v Li, 155AD3d at 576-577). Causation is determined by finding that the defendant's conduct "set inmotion the events that led to the victim['s] death[ ]" and that the "defendant's conduct was asufficiently direct cause of the ensuing death[ ]" (People v Ballenger, 106 AD3d 1375, 1377 [2013] [internalquotation marks and citations omitted], lv denied 22 NY3d 995 [2013]; see People vPhippen, 232 AD2d at 791). A defendant's conduct will qualify "as a sufficiently direct causewhen the ultimate harm should have been reasonably foreseen" (People v Ballenger, 106AD3d at 1377 [internal quotation marks and citations omitted]; see People v Galle, 77NY2d at 955-956; People v Phippen, 232 AD2d at 791; see e.g. People v Roth,141 AD3d at 1091).

For a defendant to be convicted of manslaughter in the second degree or criminally negligenthomicide where a person dies of a drug overdose, the People must prove more than the mere factthat the defendant illegally sold that person a dangerous drug (compare People vPinckney, 38 AD2d 217, 220-221 [1972], affd 32 NY2d 749 [1973], and People v Reeder, 48 Misc 3d782, 783 [Seneca County Ct 2015], with People v Galle, 77 NY2d at 955-956;see People v Li, 155 AD3d at 574-577; People v Roth, 141 AD3d at 1090-1091;People v Cruciani, 44 AD2d 684, 684-685 [1974], affd 36 NY2d 304 [1975]). Forexample, such additional circumstances have been found where: the defendant twice injectedcocaine into the victim when the defendant knew that the victim intended to continue takinginjections of that drug until their large supply was exhausted (see People v Galle, 77NY2d at 955-956); the defendant was a physician who knowingly prescribed the victim a lethaldose of prescription drugs without conducting proper examinations to verify the medical need forsuch prescriptions (see People v Li, 155 AD3d at 575-577); the defendant provided alarge quantity of drugs to a minor and refused to let anyone call for medical assistance or answera call from the victim's mother (see People v Roth, 141 AD3d at 1091); and the defendantintravenously administered heroin to the victim knowing that she was already under the influenceof another drug and was unable to walk or talk properly (see People v Cruciani, 36 NY2d304, 305-306 [1975]; compare People vBianco, 67 AD3d 1417, 1418-1419 [2009], lv denied 14 NY3d 797 [2010];People v Pinckney, 38 AD2d at 220-221). Relevant here, "[a]lthough it is a matter ofcommon knowledge that the use of heroin can result in death, it is also a known fact that aninjection of heroin into the body does not generally cause death" (People v Pinckney, 38AD2d at 219).^[FN*]

The evidence presented to the grand jury established that on July 20, 2017, defendant soldthe victim five blue packets of heroin for $100. Later that day, defendant sent the victim a textmessage referencing the sale and telling him to "be careful." Defendant also later informed thepolice that he advised the victim to be careful. The victim gave one packet of the heroin to hisex-girlfriend. Although she testified that she believed the heroin in this packet was two or threetimes more potent than the heroin she previously used, there is no indication that she conveyedthis information to defendant. Another person who purchased heroin from defendantapproximately one week earlier had been told by defendant that the drugs he purchased were verystrong; that person had an adverse reaction when he used those drugs but did not advisedefendant of such until after July 20, the date that defendant completed his final sale to thevictim. On July 22, 2017, police officers responded to the victim's home and were unable toresuscitate him. The coroner testified that the victim died from acute heroin toxicity. Some emptyblue and green packets were found in the victim's room, as well as hypodermic syringes and apill. The record does not disclose how many packets were found there, although some were latertested and determined to contain heroin residue.

Viewing the evidence in the light most favorable to the People, the evidence failed to proveeither that defendant's sale of heroin to the victim created a substantial and unjustifiable risk ofdeath, through proof of additional circumstances, or that the sale of heroin was a sufficientlydirect cause of the victim's death. There was no evidence presented that the victim overdosed onthe heroin that defendant sold him. Police found green and blue packets of heroin in the victim'sroom, but there was no evidence as to which packet or packets the victim took heroin from on thenight he overdosed, nor how much heroin he used that night. The victim could have used heroinfrom the green, blue or both green and blue packets on the night that he overdosed. Further, therewas no evidence that defendant sold heroin in green packets, or that defendant was the onlysource from whom the victim obtained heroin.

Although the evidence established that the victim's death was attributed to a heroin overdose,the evidence also established that defendant sold the victim heroin two days prior to the victim'sdeath and that defendant was not present when the victim overdosed (see People vBianco, 67 AD3d at 1418-1419; People v Pinckney, 38 AD2d at 220-221;compare People v Galle, 77 NY2d at 955-956; People v Li, 155 AD3d at575-577; People v Roth, 141 AD3d at 1091; People v Cruciani, 36 NY2d at 305).Moreover, no evidence was presented establishing that defendant was aware that the heroin hesold to the victim would result in the victim's death. In this regard, the testimony of theex-girlfriend regarding the strength of the heroin is nothing more than mere speculation, and theother user's warning to defendant about the heroin did not occur until after defendant had sold theheroin to the victim. Although defendant warned the victim to "be careful," this is not enough tohold defendant criminally liable for the victim's death (see People v Pinckney, 38 AD2dat 220-221). Accordingly, as the evidence presented to the grand jury was legally insufficient toestablish that defendant committed manslaughter in the second degree or the lesser includedoffense of criminally negligent homicide, we would affirm.

Clark, J., concurs. Ordered that the order is modified, on the law, by reversing so muchthereof as partially granted defendant's motion; motion denied in its entirety; and, as so modified,affirmed.

Footnote *:According to the ex-girlfriend,she and the victim had obtained green packets of heroin the week prior and ingested same. Withrespect to the relative potency of the heroin, she indicated that "two or three of the green[packets] would've been equivalent to one of the blue [packets]."

Footnote *:The concurrence inPinckney made a statement that was prescient in 1972 and is equally applicable today:"While there has recently been a substantial increase in deaths from narcotics, the proportion ofsuch deaths to the number of times narcotics are currently being used by addicts and for legalmedical treatment is not nearly great enough to justify an assumption by a person facilitating theinjection of a narcotic drug by a user that the latter is thereby running a substantial andunjustifiable risk that death will result from that injection" (People v Pinckney, 38 AD2dat 223-224 [Shapiro, J., concurring]).