Linda S. Reynolds (Karen Russo-McLaughlin and Barbara Davies Eberl of counsel), for appellant.

Kevin M. Dillon, District Attorney (Eleanor Kubiniec of counsel), for respondent.

CALLAHAN, J. P., DENMAN, PINE, BALIO and DAVIS, JJ., concur.

PINE, J.

Defendant was convicted, after a jury trial, of reckless [261] assault in the second degree (Penal Law § 120.05 [4]), as a purported lesser included offense of reckless assault in the first degree (Penal Law § 120.10 [3]). He was acquitted of two companion counts of intentional assault and one count of criminal possession of a weapon. He contends on appeal that the court erroneously refused to charge that a mistake of fact is a defense to reckless assault. No issue is raised with respect to the propriety of charging assault in the second degree as a lesser included offense.

The evidence established that defendant, who had been drinking all evening, shot Gordon Ulrich above the left knee in the early morning hours of January 1, 1985 after an argument concerning defendant's girlfriend. Prosecution witnesses testified that, before defendant got a rifle from his car, he threatened to blow the victim's brains out. They also testified that, after the gun discharged, defendant said "I'm sorry, it was an accident. I didn't mean to hurt anybody."

Defendant testified that he was a member of a conservation society and used its rifle range. He said that he intended to go there on January 1st, that he had cleaned the rifle the day before, that he always kept three rounds of ammunition in the rifle (one in the chamber and two in the clip), and that he had removed and replaced the three rounds while cleaning the gun. He said he had thrown it in the back seat of his car because he was having trouble opening his trunk.

He testified that he was drunk and that, when he knew there would be trouble, he pulled the rifle from the back seat of his car. He further testified that: "as I stood by the door, I ejected it three times. And the gun was unloaded as far as I knew because I always had the three rounds in it. And I turned away from my car. I had the rifle in my right hand, and I was hanging on to the car with my left as I was walking. I didn't even reach to the end of the car and the rifle discharged. I don't know how it went off. It was unloaded as far as I knew. And I was surprised as everybody else. I was in shock that it went off. I looked around. I heard people screaming, and I looked and I seen somebody on the ground. I walked over to the person and I seen him bleeding. I put my hand on him and I says, I'm sorry, it was an accident."

Defendant conceded that he did not look in the chamber to see whether the gun was unloaded. He testified that the only way the gun could have been loaded was that he had not put one bullet in the chamber and two "in the ready", as he [262] thought, but had mistakenly put three "in the ready". If he had done that, there would still have been a bullet in the chamber after he cocked the rifle three times.

Defendant requested the court to charge that the jury could consider whether a mistake of fact negated the culpable mental state required for each of the three assault counts charged in the indictment. His request was granted with respect to the intentional counts only. Although there was no specific request for a mistake of fact charge on the purported lesser included reckless assault crime of which defendant was convicted, we find that the issue whether a mistake of fact defense applies to reckless conduct is preserved on this record.

The mistake of fact defense is found in Penal Law § 15.20 (1) (a), which provides:

"A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless:

"(a) Such factual mistake negatives the culpable mental state required for the commission of an offense".

Recklessness is a culpable mental state defined in Penal Law § 15.05 (3). It requires that the actor be aware of and consciously disregard a substantial and unjustifiable risk that a result will occur or that a circumstance exists.

In People v Marrero (69 N.Y.2d 382), the Court of Appeals was confronted with interpreting the related defense of mistake of law (Penal Law § 15.20 [2] [a], [d]). The majority relied on the language of Model Penal Code § 2.04, and held: "Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause [`afterward determined to be invalid or erroneous'], it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision" (People v Marrero, supra, at 388).

Section 2.04 (1) (a) of the Model Penal Code provides:

"(1) Ignorance or mistake as to a matter of fact or law is a defense if:

"(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense" (emphasis added).

The commentary notes that the mistake of fact need not be [263] reasonable in order to exculpate a defendant of a crime requiring intentional or knowing action (Model Penal Code § 2.04, Comment 1, at 271 [1985]). The commentary also notes that New York is in accord with the Model Penal Code in not requiring that the mistake be reasonable (Model Penal Code § 2.04, Comment 1, n 8, at 272 [1985]).

It is clear that Penal Law § 15.20 (1) (a), in referring to a culpable mental state required for the commission of an offense, included recklessness as a culpable mental state because that mental state is defined as such in Penal Law § 15.05 (3) and recklessness is specifically mentioned in Model Penal Code § 2.04. Therefore, the court erred in refusing to so charge the jury. Defendant's conviction must be reversed, the sentence thereon vacated, and the indictment dismissed. The People may re-present appropriate charges to another Grand Jury if so advised (see, People v Gonzalez, 61 N.Y.2d 633, 635).

Judgment unanimously reversed, on the law, and indictment dismissed.

Concur — Sullivan, J. P., Rosenberger, Wallach, Asch and Kassal, JJ.

The charges against defendant arose from his stabbing of Roberto Sealey during an argument outside of Grand Central Terminal, where Sealey worked as a shoeshiner. Defendant testified that in the fifteen-minute period immediately preceding the stabbing he had drunk "forty ounces of a boilermaker", which he described as a mixture of Bacardi rum and beer, and that he was "high" when the incident occurred. We think that, notwithstanding the absence of testimony regarding objective indicia of intoxication, e.g. slurred speech and a lack of balance, this testimony constituted "`sufficient evidence of intoxication * * * for a reasonable person to entertain a doubt as to the element of intent on that basis'" (People v Rodriguez, 76 N.Y.2d 918, 920), and that, accordingly, defendant's request to charge intoxication should have been granted.

To the extent that such a charge would have been inconsistent [263] with the proffered defense of justification, "a defendant's entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised". (People v Butts, 72 N.Y.2d 746, 748.)

We have considered defendant's remaining arguments and find them to be without merit.

Prudenti, P.J., S. Miller, H. Miller and Adams, JJ., concur.

Ordered that the judgment is affirmed.

Upon viewing the evidence in the light most favorable to the defendant, the trial court must instruct the jury on a claimed defense if it is supported by a reasonable view of the evidence (see People v Butts, 72 NY2d 746, 750 [1988]; People v Collins, 290 AD2d 457 [2002]). Here, the evidence established that the police responded to a call of a "burglary in progress" and arriving at the scene, observed the defendant exiting the complainant's apartment through a second-floor window onto a fire escape. The complainant's jewelry and television remote control were found in the defendant's back pocket. The police officers observed that the apartment was "in shambles" and had been "ransacked," finding "clothes everywhere," and "[a]ll kinds of items just pulled out of drawers." The defendant's claim that he believed he was given permission and authority to be in the apartment by someone named "Jake" was unsubstantiated. Moreover, the trial court's instructions to the jury on the elements of burglary and criminal possession of stolen property adequately covered the defense theory (see People v Williams, 81 NY2d 303, 317 [1993]; People v Banks, 248 AD2d 183 [1998]). Accordingly, the court properly refused the defendant's request for a specific charge on the mistake of fact defense.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

[92] Legal Aid Society, New York City (Svetlana M. Kornfeind and Steven Banks of counsel), for appellant.

[93] Cyrus R. Vance, Jr., District Attorney, New York City (Sara M. Zausmer and Gina Mignola of counsel), for respondent.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH and JONES concur.

OPINION OF THE COURT

PIGOTT, J.

In this appeal, we address the relation between a claim of right defense and a mistake of fact defense in the second-degree [94] robbery context. We conclude that, in the circumstances of this case, the two defenses are equivalent.

I.

The incident underlying this appeal occurred after defendant Debra Pagan hailed a livery cab from a bus stop at 116th Street and Madison Avenue, in Manhattan. Defendant asked the cabdriver to take her to 109th Street and Lexington Avenue, and she told him that she had only four dollars on her. Although a minimum fare of six dollars applied in the area, the cabdriver agreed to the lower amount, because defendant appeared ill.

There then ensued a rather bizarre series of cash transactions. When they arrived at the requested destination, defendant gave the cabdriver a dollar bill and a $20 bill (this from the person who had said she had only four dollars for the trip). The cabdriver returned the dollar to defendant, telling her that he did not need it to make change. He then gave her $16 in change. Defendant insisted that she was entitled to $17 in change. The cabdriver pointed out to defendant that he had returned the dollar she had given him, before giving her the correct change from $20.

Defendant demanded that the cabdriver return the $20 bill, which he did. Then, instead of returning the $16 change and restarting the transaction, defendant offered the cabdriver $4 from the $16 he had given her as change. The cabdriver refused to take the money, telling defendant that she was paying him from his own money. Defendant replied that the cabdriver was confusing her, and took the $4 back. She now had her money and the cabdriver's money.

At this time, the security locks on the livery cab were active, preventing defendant from leaving the car. The cabdriver asked defendant to return the $16 he had given her, offering to forgive the $4 she owed him. Defendant refused; but, when the cabdriver told defendant that he would take her to the police precinct, she placed the $16 on the console between the front seats, and the cabdriver then unlocked the doors. However, defendant refused to leave the cab, accusing the cabdriver of stealing from her.

The cabdriver began to drive to the nearest police precinct. He had the $16 in his right hand. There was no partition between the front and rear seats of the livery cab. Defendant leaned forward and tried to grab the $16, scratching and biting [95] the cabdriver's hand in the process. The cabdriver held on to the money.

At the corner of 107th Street and Lexington Avenue, the cabdriver stopped the car. Defendant said to the cabdriver, "Now you're going to see." She pulled out a knife, and demanded the money back. Seeing two police officers, the cabdriver attracted their attention, telling them that his passenger had a knife. When the officers approached the cab, defendant was in the back seat, clutching a knife.

Defendant was arrested and subsequently indicted on charges of attempted robbery in the first degree, attempted robbery in the second degree, criminal possession of a weapon in the third degree, assault in the third degree, and menacing in the second degree. She proceeded to a jury trial in Supreme Court.

II.

Defendant did not testify or call any witnesses. At the close of evidence, defendant moved for dismissal of the attempted robbery counts under CPL 290.10, arguing that the People had failed to prove intent to take another's property. Supreme Court reserved decision on defendant's motion.

During the charge conference, the prosecutor asked Supreme Court to instruct the jury that claim of right is not a defense to robbery. Defense counsel objected to such a negative claim of right instruction, insisting that the defense would not be asking for a claim of right instruction in the first place. Instead, defense counsel requested what she called a mistake of fact instruction, namely that the jury must find defendant not guilty of attempted robbery if it concluded that she had been acting under a mistaken belief that the $16 in change in fact belonged to her, such that she could not have formed the intent to steal it. Supreme Court denied defendant's request, reasoning that a claim of right instruction would not be permitted, and that there was no distinction in the present case between a claim of right instruction and a mistake of fact instruction. Defense counsel was permitted to argue mistake of fact to the jury, but would have to do so without the support of a jury charge.

In summation, defense counsel argued that defendant had been confused and thought the money she was trying to take was her own. The prosecutor emphasized that defendant had no right to resort to physical force to take money, regardless of whether she believed the money was hers.

[96] Ultimately, Supreme Court gave the negative claim of right instruction, telling the jury that "the law does not permit one person to use force to take money from another person, even where the person doing the taking honestly believes he or she is entitled to the money." Supreme Court did not give the mistake of fact instruction requested by the defense.

The jury found defendant guilty of all the charges except attempted robbery in the first degree, which count was dismissed on the People's motion. Supreme Court denied defendant's motion to dismiss, and defendant was duly convicted of the remaining charges, including attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [a]).

On appeal, defendant argued that Supreme Court committed reversible error by refusing her requested mistake of fact charge and that the evidence was legally insufficient. The Appellate Division affirmed the judgment of conviction (81 AD3d 86 [1st Dept 2010]). A Judge of this Court granted defendant leave to appeal (16 NY3d 834 [2011]). We now affirm.

III.

Robbery is defined as "forcible stealing" (Penal Law § 160.00); larceny is an element of robbery. Although it is a defense to larceny "that the property was appropriated under a claim of right made in good faith" (Penal Law § 155.15 [1]), our case law has limited the application of that defense to robbery. Forcibly taking the property of another, even when one honestly believes it to be one's own property "entails the risk of physical or mental injury to individuals" (People v Reid, 69 NY2d 469, 476-477 [1987]). Thus, we have held that the claim of right defense may not be raised in a robbery case when a defendant takes money to satisfy a preexisting debt (id.). Moreover, we have held that, even when a claim of right defense is permitted, a jury instruction outlining the claim may not be given in a robbery case, "regardless of the nature of the property taken" (People v Green, 5 NY3d 538, 545 [2005]).

For these reasons, a jury instruction concerning a claim of right defense would not have been permissible in the present case. Defendant insists, however, that the jury instruction she sought related not to a claim of right, but to the defense of mistake of fact. Under that defense, a person is relieved of criminal liability for conduct that she engages in "under a mistaken belief of fact" if "[s]uch factual mistake negatives the culpable mental state required for the commission of an offense" (Penal Law § 15.20 [1] [a]).

[97] Defendant's argument misapprehends the relation between the claim of right defense and the mistake of fact defense. Depending on the underlying facts, the two defenses may overlap, such that the defenses are identical to one another. Insofar as defendant's claim of right defense involves the claim that defendant had a mistaken belief that the property she tried to take was her own, it is also a mistake of fact defense, because it amounts to the claim that defendant's "factual mistake negatives the culpable mental state required for the commission of [the] offense" (Penal Law § 15.20 [1] [a]), namely larcenous intent. In this factual scenario, the claim of right defense is a specific instance of the more general category of mistake of fact.

A mistake of fact defense, claiming that defendant erroneously but honestly believed that the property she tried to take was hers, is therefore governed by the same case law that restricts a claim of right defense. The mistake of fact defense, like the identical claim of right defense, will not apply when the crime involves taking money by force to satisfy a preexisting debt (see Reid, 69 NY2d at 476-477), and no jury instruction concerning that mistake of fact defense is permissible in a robbery case, "regardless of the nature of the property taken" (People v Green, 5 NY3d 538, 545 [2005]). It follows that, under Green, defendant was not entitled to the jury instruction that she requested on her mistake of fact defense.

IV.

We now turn to the question whether the People were entitled to a negative claim of right charge.

Part of our rationale for disallowing a claim of right defense when a defendant takes money to satisfy a preexisting debt has been that a person cannot have a true claim to bills or other currency, because they are fungible (see Reid, 69 NY2d at 476). Generally, the law considers a defendant who believes that he is owed a sum of money, and then takes cash in that amount by force, to have committed robbery. On the other hand, a good faith belief that a chattel belongs to the taker would, if credited by the jury, negate the larcenous intent element of robbery (Green, 5 NY3d at 544).

The difference lies in whether defendant may have had a good faith belief that the particular property belonged to him. When a defendant takes a hundred dollars from a debtor by force, without any evidence to suggest that defendant cares about the particular bills making up that hundred dollars, [98] defendant cannot be said to have a good faith belief that the bills are his own. On the other hand, when a defendant takes a painting, or a car, or a television set, he may have an honest belief that it is his own property he is retrieving.

Currency might be, in essence, chattel if its intrinsic qualities, as opposed to its monetary value, are significant to the defendant, for example if defendant takes what he mistakenly believes to be a Roman coin from his collection or what he incorrectly thinks is a bill he marked with a handwritten poem. One can also conceive of a situation in which cash acquires a chattel-like status, through the circumstances of the taking. A person who sees a burglar emerge from her home carrying what she believes to be bundles of cash she had left under her bed has a claim of right defense if she takes the cash back by force and it turns out that it was not hers.

Here, defendant's mistake of fact or claim of right defense, to prevail, must rest on the theory that the $16 she attempted to take were, in essence, chattels, not fungible cash. But there was no evidence that the particular bills making up the $16 had any significance for defendant, or that she could identify them as hers. Those bills were change that the cabdriver produced after defendant gave him $20. Therefore, Supreme Court's negative claim of right instruction was proper. Consequently, we find that the jury charge contained no error.

V.

Defendant's challenge to the sufficiency of the evidence rests on the argument that the People failed to disprove her mistake of fact defense. As we have noted, that defense, in this factual setting, amounts to a claim of right defense. It is an ordinary, not an affirmative, defense (People v Chesler, 50 NY2d 203, 209-210 [1980]), and the burden of disproving it, when raised, is on the People.

Here, the jury heard evidence that defendant had negotiated a $4 fare even though she carried $21; tried to pay the cabdriver the agreed fare from money he had given her as change, after retrieving from him the money she had paid him; scratched and bit the cabdriver in an effort to take money from him; and produced a knife while continuing to demand money. Considering the facts in the light most favorable to the People, as we must on a legal sufficiency challenge, the jury could have rationally concluded that defendant had no good faith belief that the bills she tried to take were hers, but was instead trying [99] to take money she knew was another's. The People met their burden of disproving the defense.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

Susan E. Hofkin and William E. Hellerstein, New York City, for appellant.

Eugene Gold, District Attorney (Elliott Schulder of counsel), Brooklyn, for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, FUCHSBERG and COOKE concur.

[693] WACHTLER, J.

The defendant was charged with stabbing and killing Daniel Smith. There is no doubt that the defendant stabbed Smith and that Smith later died at a hospital. However at trial one of the principal issues was whether the stab wound caused the death, or whether death was caused solely by medical malpractice at the hospital or by other intervening effective medical cause. The jury after being charged to consider several alternative counts of assault and homicide found the defendant guilty of manslaughter in the first degree. On this appeal the defendant urges that the evidence was only sufficient to establish assault because the People failed, as a matter of law, to prove that the stab wound caused Smith's death beyond a reasonable doubt.

The stabbing occurred when the defendant arrived unexpectedly at his former girlfriend's Brooklyn apartment on the evening of October 8, 1971. He found Daniel Smith there and ordered him to leave at knife point. When Smith suggested that they talk it over, the defendant rejected the idea and stabbed him in the stomach. Smith was then taken to a Brooklyn hospital where he was operated on later that evening. The following day the defendant was arrested and charged with assault. On November 8, 1971 Smith died in the hospital and the defendant was charged with murder.

[694] At the trial the People called Dr. Dominck Di Maio, the Deputy Chief Medical Examiner for the Borough of Brooklyn, to establish the cause of death. Di Maio had not been present during the operation performed on October 8; but he had reviewed the reports of the surgeons and the anesthesiologist and had also performed an autopsy on November 10, 1971. Since neither the surgeons nor the anesthesiologist testified at the trial, the only evidence regarding the cause of death came from Di Maio and the reports of the operation, both of which were introduced into evidence.

Di Maio stated that when Smith entered the hospital he had a single knife wound in the abdomen which had punctured the stomach. Prior to the operation he was given "a substance which is commonly called Curare" which paralyzes the chest muscles making it impossible for the patient to breathe on his own. As a result, the anesthesiologist had to "breathe" for him by squeezing a bag of oxygen into the lungs, a procedure called ventilation. During the initial stages of the operation, the surgeons discovered that Smith also had an incarcerated hernia. After they had sutured the wounds and completed the operation on the stomach, the surgeons proceeded to correct the hernia. During this phase of the operation "it was noted that the body was turning blue and there was no pulse, which means the person went into cardiac arrest." Smith then suffered a loss of oxygen to the brain and massive brain damage. He died a month later without ever regaining consciousness. At the time of death, the stomach wound had completedly healed. Nevertheless at the trial, and in his autopsy report, Di Maio stated that in his opinion death was caused by "a stab wound of the abdomen, stomach, cardiac arrest during surgical correction of the stab wound and another operation which was indicated during the surgical procedure with sepsis, which means infection, and kidney shut down."

Thus Smith's death was immediately caused by heart failure, with resulting massive brain damage, which occurred during the operation, and Di Maio concluded that the stab wound was ultimately responsible for this. But the heart failure had occurred after the surgeons had successfully closed the stomach wound inflicted by the defendant, and while they were correcting the hernia which, concededly, was not in any way related to the defendant's act. Di Maio was asked whether this phase of the operation was also made necessary [695] by the defendant's act. He had initially stated in conclusory terms that when the surgeons discovered that Smith had the hernia they "felt [it] should be operated upon or it would possibly endanger his life." But later, more equivocally, he observed that "They saw that and they, I suppose, believed it might be a good thing to take care of that at the same time." When asked whether it was a "correct medical decision" he said that it was because it is always proper "if you are in the belly, and you see something that may aggravate * * * or may complicate the condition you are operating for, you should do something about it." Besides, he noted, the hernia might have become gangrenous and "If it did occur, they would have to go in again, and they would risk his life." However when he was asked for his opinion as to whether the patient would have survived the operation if the surgeons had simply treated the stomach wound without "attend[ing] to the additional hernia operation", he answered "the chances are he would."

Dr. Di Maio was also asked to explain exactly what had caused the cardiac arrest. Here he recognized several possibilities. It could have been caused by the shock of the stab wound or by the shock or physical strain of either or both of the operations. But it also could have been caused by something that occurred in the operating room. He initially stated that since he had not participated in the operation he did not "feel" that he should make any judgment on this. This reluctance was also prompted by the fact that "There is an anesthesia report which I have read, and there is a surgeon's report, which I have read, and they are in direct contradiction".

The anesthesiologist's report stated that Smith had experienced a "broncho spasm" which, Di Maio explained, could have blocked the air passage making it impossible for the anesthesiologist to ventilate the patient. The surgeons' report on the other hand stated that when they noticed the patient's color change they asked the anesthesiologist "about the status of the patient, [and] he said he had difficulty ventilating the patient. It was the opinion of all three surgeons at the table that the anesthesiologist was in complete unawareness of what happened to the patient. When we investigated the situation first, the diaphragm was not moving and the patient was not being assisted with ventilation." Finally Di Maio concluded "Now these are the two contradictions. If the anesthesiologist [696] is correct, and I have to assume so, there was a bronchial spasm, the diaphragm couldn't move because he couldn't get the air beyond the obstruction." (Italics supplied.) However on cross-examination he conceded that if the anesthesiologist was not doing his job so that the patient "wasn't getting any ventilation" or oxygen, he could suffer cardiac arrest, and that alone could be "the competent producing cause of death."

At the conclusion of the trial the court submitted various counts to the jury including common-law murder, manslaughter in the first degree^[1] and assault in the first degree.^[2] As indicated they found the defendant guilty of manslaughter in the first degree on the theory that he assaulted Daniel Smith to inflict serious physical injury and, without intending to do so, caused his death.

The Appellate Division affirmed by a bare majority.

We have recently observed that there is "no statutory provision regarding the effect of an intervening cause of injury as it relates to the criminal responsibility of one who sets in motion the machinery which ultimately results in the victim's death; and there is surprisingly little case law dealing with the subject" (People v Kibbe, 35 N.Y.2d 407, 412). The concept of causation, although frequently considered and discussed in civil cases, is rarely encountered in criminal law (see, e.g., Ryu, Causation in Criminal Law, 106 U of Pa L Rev 773). It has been suggested that the criminal concepts involved are less complex than the civil (Hall, General Principles of Criminal Law [2d ed], p 254), but the burden of proof is more demanding and analogies are "neither controlling nor dispositive" (People v Kibbe, supra, p 412). In criminal cases questions of causation only arise when the crime charged involves not only conduct — and usually intent — but also proof that a specific harm has resulted (see La Fave and Hall, Criminal Law, p 247). Typically the cases in which the problems arise involve homicide.

[697] One accused of homicide, of course, cannot be convicted unless it is shown that he "cause[d] the death of a person" (Penal Law, § 125.00). No matter what degree of homicide is charged this is always an essential element which the People must prove beyond a reasonable doubt (People v Brengard, 265 N.Y. 100, 108). This means that the prosecutor must, at least, prove that the defendant's conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death (see, e.g., Perkins, Criminal Law, 687). But something more is required before his conduct will be recognized as a legal cause of death warranting criminal sanctions. The requirement here is that "the defendant's actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability" (People v Kibbe, supra, at p 413). Thus an "obscure or 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, supra, p 108).

We have held that "direct" does not mean "immediate". The defendant may be held to have caused the death even though it does not immediately follow the injury (see, e.g., Cox v People, 80 N.Y. 500; People v Brengard, supra). Neither does "direct" mean "unaided" for the defendant will be held liable for the death although other factors, entering after the injury, have contributed to the fatal result. Thus if "felonious assault is operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment does not relieve the assailant from liability for homicide" (People v Kane, 213 N.Y. 260, 270). But if "the death is solely attributable to the secondary agency, and not at all induced by the primary one * * * its intervention constitutes a defense" (Kane, supra, at p 270).

In the Kane case the defendant shot a pregnant woman, Anna Klein, inflicting two "serious pistol-shot wounds" — one bullet lodged in the back three inches from the spine and the other fractured a rib and lodged in one of the lungs. The wounds caused a miscarriage; the miscarriage caused septic peritonitis and that lead to death. The defendant argued that the miscarriage and the blood poisoning had been caused by improper medical treatment. We held that there was no testimony that the miscarriage or the septic condition "was or could have been developed" as the defendant claimed. On the [698] other hand the evidence that was introduced was "sufficient to warrant the finding that the wounds inflicted by the defendant operated as causes of death even though the medical treatment may also have had some causative influence" (Kane, supra, at p 277).

In Kane however we observed that if one of the interns at the hospital "had carelessly killed Anna Klein by the negligent administration of a deadly poison, the defendant would not have been liable for her death" (Kane, supra, at pp 270-271). Thus despite the fact that the defendant had inflicted serious wounds, he could not have been convicted if the death was solely attributable to grossly negligent treatment. This often presents a delicate question. Later in the Kane opinion (p 275) we cited with approval a case (Commonwealth v Eisenhower, 181 Pa 470) in which the defendant was held liable for homicide although there was evidence that a surgeon operating on the wound forgot to remove a drainage tube which later found its way into the spinal cord "and thus caused death." The Pennsylvania court said (p 476) that even if this had occurred "'the prisoner cannot escape by showing that death was the result of an accident occurring in an operation which his felonious act made necessary.'"

One of the problems in the case now before us is that there is some question as to whether the operation on the hernia was made necessary by the defendant's act. According to the testimony it was "medically correct", arguably necessary, clearly incidental — but the hernia itself was absolutely unrelated to the stab wound. Dr. Di Maio conceded that the chances were that if it had not been performed, the patient would have survived. This type of necessity is obviously of a different order than is normally required to fix responsibility for homicide. It is, we believe, a factor we must consider in determining whether the causal relationship is sufficiently direct.

The other difficulty in the case is that it was never determined what actually caused the cardiac arrest. Dr. Di Maio acknowledged several possibilities which individually or combined could have created the condition. Most of the factors cited would indicate that the defendant's act was responsible either because it created a physical strain or shock or created the need for an operation which had the same effect. But Dr. Di Maio conceded that there was some evidence that the anesthesiologist failed to provide oxygen to the patient and [699] that this alone could have been the cause of death. In our view if this occurred it was a grave neglect, perhaps gross negligence, but in any event sufficient to break whatever tenuous causal relationship existed at the time of this incidental operation. There is of course no showing that this was in fact the cause of death but on this record it cannot be ruled out as a possibility, certainly not beyond a reasonable doubt.

Finally it should be noted that this is not a case where two or more witnesses gave conflicting testimony which simply created a credibility question for the jury. Here all the evidence on this point came from a single prosecution witness who offered irreconcilable testimony pointing in both directions to guilt and innocence on the homicide charge (see, e.g., People v Ledwon, 153 N.Y. 10; People v Reed, 40 N.Y.2d 204). There was then no basis for the jury to find that the injury inflicted by the defendant caused the death of Daniel Smith, beyond a reasonable doubt.

Accordingly, the order of the Appellate Division should be modified by reducing the conviction from manslaughter in the first degree to assault in the first degree (Penal Law, § 120.10, subd 1) and the defendant should be resentenced (CPL 470.15, subd 2, par [a]; 470.20, subd 4; 470.40, subd 1).

Order modified and case remitted to Supreme Court, Kings County, for resentence in accordance with the opinion herein and, as so modified, affirmed.

[1] On this count the court charged the jury under subdivision 1 of section 125.20 of the Penal Law which states: "A person is guilty of manslaughter in the first degree when * * * [w]ith intent to cause serious physical injury to another person, he causes the death of such person".

[2] On this count the charge was pursuant to subdivision 1 of section 120.10 of the Penal Law which states: "A person is guilty of assault in the first degree when * * * [w]ith intent to cause serious physical injury to another person, he causes such injury to such person * * * by means of a deadly weapon or a dangerous instrument".

James Culleton for defendant. Robert T. Johnson, District Attorney of Bronx County (David Shapiro of counsel), for plaintiff.

GERALD SHEINDLIN, J.

The defendant was indicted for murder in the second degree (Penal Law § 125.25 [1]) and other related crimes. During this [39] nonjury trial, the issue of causation of death was presented to this court. The defense alleged that the victim had recovered from the gunshot wound he suffered and actually committed suicide by refusing nourishment and medical treatment. The People argued that the gunshot wound was a cause of death. This written decision supplements the oral decision rendered during the trial, wherein this court found that the gunshot wound was a sufficiently direct cause of the victim's death to establish causation beyond a reasonable doubt.

FINDINGS OF FACT

On October 17, 1991, the victim, George Bittner, suffered a gunshot wound to his head while driving a cab in Bronx County. He was removed to Lincoln Hospital where he was diagnosed with a gunshot wound to the neck with transection of the right internal carotid artery and facial nerve paralysis. The victim contracted pneumonia which was treated and eventually cured. Since the victim continued to have difficulty speaking and swallowing a month after his admission, testing was performed but revealed no significant injury. The victim communicated by writing on a note pad and nodding in response to questions. He was interviewed in this manner by detectives concerning the incident. The victim commenced and participated in rehabilitation for speaking, swallowing and walking at Lincoln Hospital on November 13, 1991.

On December 4, 1991 the victim improved sufficiently to permit his transfer to Metropolitan Hospital for further rehabilitation. On admission he was found, among other diagnoses, to be unable to swallow and to require feeding by tube. The victim became depressed and distraught at his slow progress. On December 19, 1991, the victim pulled out his feeding tube and refused its reinsertion even after being advised of its vital necessity. Although the victim expressed a desire to return to regular food, he did not eat any when it was provided to him. He ingested only ice water and liquids. The victim also refused to participate in medical tests or procedures. He grew weaker and more emaciated until he suffered a cardiorespiratory arrest and died on December 24, 1991.

On December 27, 1991, an autopsy was performed by City Medical Examiner Edward Ginsberg. The external examination revealed a severely emaciated body with almost a completed absence of subcutaneous body fat and atrophy of the skeletal muscles. The Medical Examiner found that the victim [40] suffered a gunshot wound to the head and neck with a line of metallic fragments in the wound's path between the right ear and left cheek. A large fragment of lead bullet was recovered from the deceased's skull. Dr. Ginsberg found the cause of death to be a gunshot wound to the neck and head with healed wounds below the right earlobe and left cheek, fracture of the mandible,^[1] complications of occlusion^[2] of the right internal carotid artery, left hemiparesis^[3] and inability to swallow, and refusal of feeding and medical treatment.

Dr. Jon Pearl of the Medical Examiner's office testified at the trial to clarify and interpret the medical records and autopsy report.^[4] He indicated that the scars were consistent with entry and exit wounds. Dr. Pearl found that the gunshot wound caused encephalomalacia of the brain — a degeneration of the brain that caused the clinical symptoms of weakness, difficulty swallowing and partial paralysis. Dr. Pearl explained that the resulting changes in the brain caused by the gunshot wound were the same as the results of a stroke. Dr. Pearl found that the gunshot wound contributed to the victim's death. Dr. Pearl testified that the victim probably would have lived if he accepted food but would have suffered permanent disability. Although Dr. Pearl indicated the victim committed suicide by refusing food and medical treatment, he explained that if any action of a person contributes to a death, even if a minor contributing factor, death is classified as a homicide by the Medical Examiner's office.

CONCLUSIONS OF LAW

To be found guilty of intentional murder, a defendant must intend to cause the death of another person and actually cause the death of that person. (Penal Law § 125.25 [1].) Proof of causation is mandatory for any homicide prosecution. (People v Brengard, 265 N.Y. 100, 108 [1934].)

If a defendant's actions are "`a sufficiently direct cause'" of the death, criminal liability exists. (People v Kibbe, 35 N.Y.2d 407, 413 [1974].) The question is whether the "ultimate [41] harm is something which should have been foreseen as being reasonably related to the acts of the accused." (Supra, at 412.) If the defendant set in motion "the chain of events which ultimately resulted in the victim's death", homicide can be attributed to the defendant. (People v Bonilla, 95 AD2d 396, 409 [2d Dept 1983], affd 63 N.Y.2d 341 [1984].) As long as the defendant's actions are "at least a contribut[ory] cause" of death, homicide charges are appropriate. (Matter of Anthony M., 63 N.Y.2d 270, 281 [1984].)

When death is attributed to more than one cause, the issue of causation becomes more complicated. If multiple injuries cause death together, each participant is criminally liable for the death if his actions were factors in the victim's demise. (See, People v Cicchetti, 44 N.Y.2d 803, 804-805 [1978] [defendant who shot victim after victim was stabbed was criminally liable where cause of death was both gunshot and stab wounds].) When a secondary and intervening event occurs between the initial injury and resulting death, the intervening event operates as a defense to criminal liability only "where the death is solely attributable to the secondary agency, and not at all induced by the primary one". (People v Kane, 213 N.Y. 260, 270 [1915] [secondary agency of improper medical treatment did not absolve the defendant of criminal liability].) A defendant does not escape criminal liability in this situation because "liability does not depend on death being the `immediate' consequence of the injury". (Supra, at 271.) As long as death is a consequence, causation is established. (See, e.g., People v Eulo, 63 N.Y.2d 341, 359 [1984] [organ removal after shooting victim declared brain dead]; Matter of Anthony M., 63 N.Y.2d 270, 280 [1984], supra [heart failure eight days after robbery]; People v Kibbe, 35 N.Y.2d 407, 413 [1974], supra [robbery victim struck and killed by truck after being abandoned on road]; but see, People v Steward, 40 N.Y.2d 692, 698-699 [1976] [causation not established where victim suffered cardiac arrest during treatment of incarcerated hernia and the necessity for treating the hernia during surgery for a knife wound was not proven].)

In the case at bar, the intervening event was the victim's refusal of nourishment and medical treatment — in effect, his suicide. A review of the case law sheds little light on this situation. In an 1899 California case, criminal liability existed when a shooting victim slashed his own throat with a knife. (People v Lewis, 124 Cal 551, 57 P 470 [1899].) The court reasoned that the knife wound was caused by the gunshot [42] wound inflicted by the defendant and that the knife wound merely accelerated the victim's death. (People v Lewis, 124 Cal, at 556, 57 P, at 472.) In an Indiana case decided in 1932, criminal liability was established when a rape and assault victim voluntarily poisoned herself while being held several days by her assailants. (Stephenson v State, 205 Ind 141, 179 NE 633 [1932].) Upholding a murder conviction, the court found that the defendant "by his acts and conduct rendered the deceased distracted and mentally irresponsible, and that [suicide] was the natural and probable consequence of such unlawful and criminal treatment". (Supra, at 190-191, at 649.) In United States v Hamilton (182 F Supp 548 [D DC 1960]) criminal liability was established when the victim of a vicious assault pulled out his breathing tubes and subsequently died. Criminal liability existed even if the defendant's actions might not have been fatal and the victim's actions contributed to his own death because the defendant's actions commenced a chain of causation leading to death. (Supra, at 550.) As in Lewis (supra), the court in Hamilton deemed the victim's motivation irrelevant.

Apparently no New York courts have dealt directly with the issue of suicide as an intervening event and whether it breaks the chain of causation. However, treatment of the issue of removal of life support systems does aid the analysis. A court of concurrent jurisdiction found a defendant properly charged with manslaughter in the first degree for the death of a victim she mortally wounded after a nurse turned off the victim's life support system. (People v Vaughn, 152 Misc 2d 731 [Sup Ct, Erie County 1991, Kubiniec, J.].) Although it was unclear whether the victim's cardiac arrest was caused by the removal of the life support system, the court found that the defendant who stabbed the victim was criminally liable because "the clear medical evidence was that at the moment of death the initial stabbing continued to operate as a significant direct contribution thereto." (People v Vaughn, 152 Misc 2d, at 743.) Adopting the legal fiction that an agent who terminates the life support system is one with the victim, the court questioned whether it can "justify continuing this legal fiction to conclude that this action is a foreseeable link in the chain of events leading to the crime victim's untimely demise? Or are we simply recognizing and legalizing the humane imperative; that it is time to remove artificial life supports? In any event and in either instance, the law does not conclude that the victim `caused' his own death so as to interrupt the chain of causation and thereby release the wrongdoer of a homicide. At [43] worst we conclude that the victim's actions only contributed to death." (Supra, at 742.) The court believed that the law has evolved to the point "where it ought to recognize the injustice to both the victim and to society that results if we continue to require of a jury a finding of superceding causation and to release the perpetrator from a homicide charge upon their finding that an unauthorized `angel of mercy' stepped forward and removed artificial life supports from a mortally wounded crime victim? This court believes it has." (Supra, at 742.) Whether the second actor committed a crime "should no longer provide escape to the initial perpetrator whose vicious act propelled the victim to certain and extended death and which act, at the time of the victim's release from artificial life supports, continued to be a substantial contribution to that death." (Supra, at 743.) The court found no difference if the removal of the life support system had been accomplished by the victim herself. In Vaughn, the victim was not recuperating and was being supported by artificial life supports. In the instant case, however, the victim was recuperating and was not in extremis.

Applying the rationale of the above-cited cases to the facts herein, this court concludes that the People have met their burden of proving causation. The victim acted voluntarily in refusing nourishment and medical treatment. However, his inability to ingest food orally was directly caused by the gunshot wound he suffered. The gunshot wound created the difficulty swallowing and the difficulty swallowing prevented him from ingesting food orally. The gunshot wound set in motion a chain of events resulting in hospitalization, difficult swallowing, and forced feeding, the cessation of which resulted in death. The gunshot wound forged a causative link between the initial injury and death and was a sufficiently direct and contributing event which eventually resulted in death. The suicide does not operate as an intervening act that excuses criminal liability because death was not solely attributable to this secondary agency. Death was caused by both the gunshot wound and the malnutrition. Perhaps criminal liability would be excused if the victim had recovered sufficiently to be discharged from the hospital and committed suicide at a more remote time to the initial injury. However, that is not the situation here and this court is not called upon to answer that question. Here, the People established causation beyond a reasonable doubt.

[1] The mandible is the inferior jaw bone. (Stedman's Medical Dictionary 741 [1972].)

[2] Occlusion is "the act of closing or the state of being closed." (Stedman's, op. cit., n 1, at 868.)

[3] Hemiparesis is "slight paralysis affecting one side only." (Stedman's, op. cit., n 1, at 562.)

[4] Dr. Ginsberg was no longer employed by the Medical Examiner's office.