| People v Stan XuHui Li |
| 2017 NY Slip Op 08438 [155 AD3d 571] |
| November 30, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Stan XuHui Li, Appellant. |
Belair & Evans LLP, New York (Raymond W. Belair of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December19, 2014, convicting defendant, after a jury trial, of 2 counts of manslaughter in the seconddegree, 3 counts of reckless endangerment in the first degree, 3 counts of reckless endangermentin the second degree, 170 counts of criminal sale of a prescription, 1 count of scheme to defraudin the first degree, 2 counts of grand larceny in the third degree, 9 counts of falsifying businessrecords in the first degree, and 8 counts of offering a false instrument for filing in the first degree,and sentencing him to an aggregate term of 10 to 20 years, unanimously affirmed.
Defendant was a physician specializing in pain management. In 2004, he opened a painmanagement clinic in Queens. According to the People, the clinic was nothing more than a "pillmill" catering to people who were hopelessly addicted to pain medicine, primarily opioids. ThePeople's evidence showed that, despite having been trained in the wide variety of methods foridentifying legitimate pain and treating it, defendant engaged in only the most cursory attempts toconfirm patients' complaints, such as asking them where they had pain, and occasionallypalpating a purportedly sore area or testing the range of motion of a limb. He rarely ordereddiagnostic scans. Moreover, defendant, despite the plethora of options for treating pain, regularlyprescribed opioids as a first resort, and not a last resort, which would have been the prudentcourse given the highly addictive nature of those drugs.
Further demonstrating the fact that defendant's clinic was not focused on the legitimatepractice of pain medicine, but rather profiting from the opioid addiction epidemic, is thatappointments were not necessary and all payments were required to be made in cash. A typicalvisit would cost $100, but patients who came back earlier than a month later for their nextmonth's prescriptions, who obtained prescriptions from other doctors or who needed more thanthree prescriptions or prescriptions for more than 60 mg per day of opioid were charged anadditional $50. Patients usually handed the money to defendant, who placed the money directlyinto his pocket. Defendant often prescribed whatever medication patients requested. On occasion,he would issue a prescription without seeing the patient at all, and if he hesitated in writing aparticular prescription, he could be persuaded if he was offered more money. From 2008 throughOctober 2011, defendant wrote over 21,000 prescriptions for controlled substances, at anincreasing pace, with more than half for substances containing the opioid oxycodone, and morethan a quarter for alprazolam (Xanax). As explained by the People's expert, NYU Director ofPain Medicine Christopher Gharibo, Xanax, when taken with opioids, can depress respiration,making the combination particularly dangerous.
Indeed, defendant's prescription practices led to tragedy. Two of defendant's patients, JosephHaeg and Nicholas Rappold, died within days of their last visits to defendant's clinic.Toxicological evidence revealed that Haeg's body contained over 20 times what would beconsidered a therapeutic amount of oxycodone—a fatal dose—and a moderatelyhigh therapeutic [*2]amount of Xanax. Although Rappold wasnot found to have fatal levels of either oxycodone or Xanax in his system when he died, his deathwas determined to have been caused by the drugs' having worked synergistically to depress hisrespiration. In connection with the deaths, defendant was charged with second degreemanslaughter. He was also charged with first-degree reckless endangerment with respect to threeother patients, and second-degree reckless endangerment with respect to four more patients. Forall 19 patients at issue defendant was charged with criminal sale of prescriptions; an aggregate180 counts of this charge were leveled. Finally, although not at issue on this appeal, defendantwas charged with one count of first-degree scheme to defraud, two counts of third-degree grandlarceny from Medicare and Blue Cross/Blue Shield; 11 counts of first-degree falsifying businessrecords submitted to the Centers for Medicare and Medicaid Services; and 16 counts offirst-degree offering a false document for filing with the New York State Department of Health'sOffice of Professional Medical Conduct. He was convicted after a jury trial of all charges, savefor one second-degree reckless endangerment count, 10 criminal sale counts, and 2 falsifyingrecords counts.
Defendant argues that the manslaughter convictions should be reversed because, as a matterof law, the sale of a controlled substance can never support a homicide charge in the absence ofexpress legislative authorization. He bases this position on a Second Department decision,People v Pinckney (38 AD2d 217 [2d Dept 1972], affd 32 NY2d 749 [1973]). InPinckney, the defendant sold heroin, and provided the means to inject it, to the victim,who died (38 AD2d at 218). He was charged with, inter alia, manslaughter in the second degreeand criminally negligent homicide (id.). Contrasting the sale of heroin with the sale ofwood alcohol, which is known to be inherently deadly, the Court held that the defendant couldnot be held criminally responsible for the death, because "[a]lthough it is a matter of commonknowledge that the use of heroin can result in death, it is also a known fact that an injection ofheroin into the body does not generally cause death. The homicide cases involving a sale or useof an illegal drug or instrument for the purpose of causing an abortion were prosecutions. . . pursuant to express statutory provisions. There are no provisions contained inthe present Penal Law which set forth that the illegal sale of a dangerous drug which results indeath to the user thereof constitutes manslaughter or criminally negligent homicide" (id.at 219 [citations omitted]).
Defendant contends that there is no legal distinction between himself and the drug dealer inPinckney, since, he claims, opioids are not even as dangerous as heroin and, in any event,he merely provided the pills, and was not present when Haeg and Rappold ingested them. Heargues that, since the Penal Law, in the sections criminalizing sales of controlled substances, issilent on the consequences if a sale results in the buyer's death, his prosecution for manslaughteris without any legal basis.
We disagree. Nothing in Pinckney suggests that one who provides a controlledsubstance, whether it be heroin by a street dealer, or opioids by a medical doctor, can never beindicted on a manslaughter charge. Indeed, in People v Cruciani (36 NY2d 304 [1975]),the Court of Appeals affirmed the second degree manslaughter conviction of the defendant, whoinjected the victim with heroin, because he knew she was already in a highly intoxicated state.The Cruciani Court distinguished Pinckney, because in the latter case there wasnot "any proof, as here, of awareness of the ongoing effect of drugs in the victim's body at thetime any self-inflicted injection might have been made, or, beyond the general knowledge of theinjuriousness of drug-taking, of a real threat to life. The remoteness of that fatal injection fromthe fact of sale diffused intent and scienter by possibly unknown or intervening eventsbeyond Pinckney's control" (36 NY2d at 305-306).
At bottom, all that was needed for the manslaughter charge to be sustained was for thePeople to satisfy its elements. That is, that defendant was "aware of and consciouslydisregard[ed] a substantial and unjustifiable risk that [death would] occur . . . Therisk [being] of such nature and degree that disregard thereof constitute[d] a gross deviation fromthe standard of conduct that a reasonable person would observe in the situation" (Penal Law§ 15.05 [3]; People vLora, 85 AD3d 487, 491 [1st Dept 2011], appeal dismissed 18 NY3d 829[2011]).
[*3] The question then becomes whetherthe People presented sufficient evidence to establish that defendant consciously disregarded therisk that Haeg and Rappold would die as a result of his prescribing practices. Trial evidence islegally sufficient to support a conviction if, viewed in the light most favorable to the People, itcould lead a rational jury to find the defendant guilty beyond a reasonable doubt (see People v Danielson, 9 NY3d342, 349 [2007]). A jury's verdict is supported by sufficient evidence if the evidencepresented supports "any valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury" (People v Bleakley, 69 NY2d 490,495 [1987]).
Defendant attacks the proof of his responsibility for Rappold's death because there was noevidence that the oxycodone that was found in Rappold's system came from defendant. Further,although there is no question that the Xanax found in Rappold's system was prescribed bydefendant days before his death, and that 55 pills were missing from the bottle, defendant assertsthat he should not be held responsible for Rappold's having consumed an amount of pills"monumentally and tragically beyond what had been prescribed by [defendant], as the Xanax wasto be taken at only one pill (2 milligrams) three times a day, which was a common therapeuticdose (emphasis omitted)." With respect to Haeg, defendant argues that the evidence does notshow that he should have anticipated that Haeg would abuse the drugs he prescribed him. Forexample, he states that, despite Haeg's friends' and relatives' testimony that his addiction wasobvious from his physical appearance, there is no proof that he himself was informed of this ornoticed anything out of the ordinary about his patient.
We find that there was sufficient evidence to convict defendant of second degreemanslaughter in the deaths of Haeg and Rappold. The People's expert, Dr. Gharibo, revieweddefendant's files for all of the 19 victims at issue in the indictment, including Haeg. Citingdefendant's failure to obtain sufficient background history, to confirm patient claims aboutmedications they were already taking, to order appropriate evaluative tests, to diagnose thecauses of pain, to explore nonopioid treatment, to minimize opioid dosages, and to avoidprescribing to obviously addicted patients, Gharibo identified 180 prescriptions that defendantwrote that were, in his expert medical opinion, without medical basis. Gharibo further concludedthat defendant usually prescribed highly addictive opioids in much higher dosages than werereasonable, and engaged in practices that created and fostered addiction and otherwiseendangered the lives of patients. Specifically with respect to Haeg, Gharibo testified thatdefendant prescribed unusually high dosages of oxycodone and Xanax. Haeg returned todefendant every three weeks for a month's prescription on October 17, November 14, andDecember 5, again receiving similar prescriptions from defendant that were not, according toGharibo's professional opinion, medically warranted. On December 26, 2009, Haeg, who,according to the testimony of friends and family members, was exhibiting overt signs of declineand addiction, saw defendant, who added gabapentin and naproxen to his drug regime withoutreducing his oxycodone dosage. On the morning of December 29, 2009, Haeg's mother foundhim dead in his apartment from a fatal dose of oxycodone, which was amplified by "a moderatelyhigh therapeutic" amount of Xanax.
Moreover, Gharibo testified that, based on Haeg's profile and history, the prescriptionswritten for him by defendant on December 26, 2009 created a "very high" risk to Haeg of a widespectrum of ill effects, which included "overdosing due to misusing [the] medication and dyingfrom respiratory death." Based on this testimony, it was reasonable for the jury to infer thatdefendant was using his prescriptions not to treat legitimate pain but to feed an addiction toopioids, and, with respect to Haeg, that he knew the patient would consume the medication in amanner consistent with a person who is taking it in such quantities to achieve and maintain anarcotic high, not for its therapeutic benefits, and that he consciously disregarded the possibilitythat, in taking the medication in such quantities, Haeg could die.
According to Gharibo, defendant also wrote medically unjustified prescriptions for Rappold,who appeared at defendant's clinic in July 2009, complaining of back and leg pain and claimingto have been taking 30 mg of Roxicodone four times per day. Without verifying Rappold'smedical condition or ordering any tests, defendant prescribed Rappold the same very highdosage, but reduced the frequency to three times per day. On August 8, 2010, Rappold [*4]returned to see defendant, claiming he had hurt his back. Whiledefendant noted "tenderness" and difficulty with a straight leg raise test, he did not diagnose thecause of the pain. Without further examination, defendant issued Rappold what Gharibo opinedwas a medically unjustified prescription for Roxicodone 30 mg pills four times a day and Xanax2 mg pills twice a day. Rappold returned to defendant on August 14, claiming to have lost theprevious week's prescription. Without checking to see if that prescription had been filled, andwithout recording any medical explanation for the decision to issue a prescription different fromthe one reported lost, defendant wrote Rappold a prescription for Percocet 10 mg four times dailyand Xanax 1 mg three times daily. On September 11, 2010, Rappold told defendant that the priorprescription had not helped, and defendant then prescribed 90 Xanax 2 mg pills to be taken threetimes daily and 120 Roxicodone 30 mg pills to be taken four times daily, which, according toGharibo, created "a high probability of overdose and death" even if taken as directed. OnSeptember 14, 2010, Rappold was found dead in his car from the combined effect of the Xanaxdefendant had prescribed and whatever oxycodone Rappold had taken along with it.
The People's theory is that, regardless of who prescribed the oxycodone ingested by Rappoldimmediately before his death, the Xanax that was unquestionably prescribed by defendant was acontributing factor in his death and thus served as a sufficient legal basis for the manslaughtercharge. Defendant counters that, absent direct proof that the drugs prescribed by him combined tocause the death, no causal link can be drawn between his actions and Rappold's death. Defendantrelies on Burrage v United States (571 US &mdash, 134 S Ct 881 [2014]) in arguing thatthe People were required to establish a "but for" connection between the Xanax prescription andRappold's death, and that the court erred in not so instructing the jury. We reject this position.Burrage interpreted specific causation language employed by Congress in the federalControlled Substance Act, which language is not included in New York's manslaughter statute(Penal Law § 125.15). Moreover, the Court of Appeals, in People v Davis (28 NY3d 294[2016]), which was decided after Burrage, reiterated that the causation element in ahomicide case is satisfied when the People prove "(1) that defendant's actions were an actualcontributory cause of the death, in the sense that they forged a link in the chain of causes whichactually brought about the death; and (2) that the fatal result was reasonably foreseeable" (28NY3d at 300 [internal quotation marks, citations and brackets omitted]). Here, the Xanaxprescription furnished by defendant to Rappold was a contributory cause of Rappold's deathbecause it combined with the oxycodone Rappold also ingested, causing his death. Further,Rappold's death was reasonably foreseeable to defendant because, as Gharibo testified, defendantwas prescribing oxycodone and Xanax in dosages that greatly increased the probability of death.Further, there was sufficient evidence that Rappold was taking the drugs to get high, and not fortherapeutic purposes, and there was sufficient evidence for the jury to infer that defendant knewRappold would take the Xanax in such a quantity that, combined with oxycodone, it would killhim.
We also affirm the convictions for criminal sale of a prescription for a controlled substanceand for reckless endangerment. With respect to the former charge, the People had to prove thatdefendant "knowingly and unlawfully s[old] a prescription for a controlled substance" (PenalLaw § 220.65), other than in good faith in the course of his professional practice.There is no adequate basis to overturn the jury's finding that 170 out of the 180 counts ofcriminal sale were proved beyond a reasonable doubt. The jury's determination with respect tothe credibility of the People's expert testimony on these counts is given great weight, anddefendant's general contentions regarding the improper nature of the prosecution and the propernature of his usual prescription practices do not overcome the showing made by the People withrespect to the medically unlawful prescriptions.
Regarding the reckless endangerment in the first degree convictions, there was ampleevidence to support a finding that defendant's prescription and treatment practices with respect tothese patients created an imminent danger of an overdose that could have been life threatening,which thereby evinced depraved indifference to human life. Defendant also makes the proceduralargument that all the reckless endangerment counts (the three first-degree counts and the foursecond-degree counts) were improper because the indictment did not specify particular [*5]office visits or occurrences of prescriptions, but rather simply listeda time period so extensive that it was virtually impossible for defendant to have adequatelyascertained which of his actions, visits, treatments or prescriptions were alleged to have created arisk to each relevant patient.
This argument is unpreserved, and we decline to review it in the interest of justice. As analternative holding, we find it to be without merit. The general rule that a count is duplicitous if itcharges more than one crime does not apply, where, as here, the charges are for continuingcrimes (see People v Hernandez, 235 AD2d 367, 368 [1st Dept 1997], lv denied89 NY2d 1012 [1997]). Contrary to defendant's claim, the indictment properly charged thereckless endangerment counts as continuing crimes. These charges against defendant were notbased on a single prescription that recklessly endangered the patient. Rather, the theory was thateach patient was endangered as a result of defendant's continuing prescriptions and overall courseof treatment, which over time endangered the patient as the risks compounded. Further, under thecircumstances here, there was no way that either defendant or the jury could have misunderstoodwhich allegations about defendant's conduct pertained to which count. Accordingly, theindictment also satisfied the specificity requirement, and provided defendant with sufficientinformation to prepare a defense and avoid double jeopardy.
We have considered and rejected defendant's remaining arguments, including thoseaddressed to the weight of the evidence and to the court's charge.Concur—Manzanet-Daniels, J.P., Mazzarelli, Webber and Oing, JJ.