| People v Davis |
| 2015 NY Slip Op 02628 [126 AD3d 1516] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Matthew A. Davis, Appellant. |
Patricia M. McGrath, Lockport, for defendant-appellant.
Matthew A. Davis, defendant-appellant pro se.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered April 18, 2013. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (two counts), burglary in the first degree and robbery in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of two counts of murder in thesecond degree and dismissing counts one and two of the indictment and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of two counts of murder in the second degree (Penal Law § 125.25 [3])and one count each of burglary in the first degree (§ 140.30 [2]) androbbery in the first degree (§ 160.15 [1]). According to the evidence at trial,defendant and his two female accomplices came up with a plan to rob a man whom oneof the accomplices had befriended on Facebook. Pursuant to the plan, the accomplicesmade arrangements with the victim to meet him alone at his apartment and, aftersocializing with the victim for a while, one of the accomplices left the apartment and heldthe door open so that defendant could enter. As defendant entered the apartment, theremaining accomplice fled, and a struggle ensued between defendant and the 41-year-oldvictim, who was overweight and had heart disease. At some point during or after thealtercation, the victim suffered a fatal heart attack. Defendant left the apartment with abag of stolen property, and the victim's body was found by relatives two days later.According to the autopsy report, the victim sustained a fractured jaw, lacerations on hisface, and abrasions on his knees and right elbow. The physician who performed theautopsy concluded that the cause of death was "Hypertensive Cardiovascular Disease,"with obesity being a contributing factor.
We agree with defendant that the evidence is legally insufficient to support theconviction of the felony murder counts because the People failed to prove beyond areasonable doubt that his actions caused the victim's death. A person is guilty of felonymurder when, during the commission or attempted commission of an enumerated felony,either the defendant or an accomplice "causes the death of a person other than one of theparticipants" (Penal Law § 125.25 [3]). A person "causes the death" ofanother person "when the . . . culpable act is 'a sufficiently direct cause' ofthe death so that the fatal result was reasonably foreseeable" (People vHernandez, 82 NY2d 309, 313-314 [1993] [emphasis added]). Such a culpable act isa sufficiently direct cause of death when it is "an actual contributory cause of death, inthe sense that [it] 'forged a link in the chain of causes which actually brought about thedeath' " (Matter of Anthony M., 63 NY2d 270, 280 [1984], quotingPeople v Stewart, 40 NY2d 692, 697 [1976]). "An obscure or a merely probableconnection between an assault and death will, as in every case of alleged crime, requireacquittal of the charge of any degree of homicide" (People v Brengard, 265 NY100, 108 [1934]).
[*2] Here, we concludethat the People failed to prove beyond a reasonable doubt that it was reasonablyforeseeable that defendant's actions, i.e., unlawfully entering the victim's apartment andassaulting him, would cause the victim's death. As noted, the victim died of a heartattack, and the injuries inflicted upon him by defendant were not life threatening. Indeed,the most serious injury inflicted was a fractured jaw. Although the Chief MedicalExaminer testified for the People at trial that defendant caused the victim's death, sheexplained that her opinion in that regard was based on her assertion that, "but for"defendant's actions, the victim would not have died of a heart attack. As the courtproperly instructed the jury, however, "more than 'but for' causation [is] required" toestablish felony murder (Hernandez, 82 NY2d at 318). Notably, the ChiefMedical Examiner did not testify that defendant's culpable act was a direct cause of thedeath or that the fatal result was reasonably foreseeable. We thus conclude that theevidence is legally insufficient to establish that defendant committed felony murder, ascharged in counts one and two of the indictment, and we therefore modify the judgmentaccordingly.
We reject defendant's further contention that the remaining counts, charging burglaryand robbery in the first degree, must be dismissed because the People failed tocorroborate the testimony of the accomplice who testified at trial, as required by CPL60.22 (1). The accomplice's testimony was amply corroborated by, inter alia, asurveillance video from a camera inside the victim's apartment building and telephonerecords showing numerous cell phone calls between defendant and the accompliceshortly before and immediately after the crimes were committed (see generally People v Reome,15 NY3d 188, 191-192 [2010]; People v Taylor, 87 AD3d 1330, 1331 [2011], lv denied17 NY3d 956 [2011]).
We have reviewed defendant's remaining contentions in his main and pro sesupplemental briefs and conclude that none warrants reversal or further modification ofthe judgment. Present—Centra, J.P., Peradotto, Lindley and DeJoseph, JJ.