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.

Stein, Spain and McCarthy, JJ., concur.

[1376] Rose, J.P.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered July 18, 2011, upon a verdict convicting defendant of the crime of criminally negligent homicide (two counts).

Defendant was the front-seat passenger in a vehicle pursuing another vehicle at high speed and close range on a four-lane, limited access highway. When the two vehicles began to travel alongside each other, defendant grabbed the steering wheel and jerked it toward the other vehicle. The other vehicle escaped unscathed, but defendant's vehicle struck the guardrail, causing a one-car accident that obstructed one of the two westbound lanes. As oncoming westbound traffic negotiated the accident scene, it slowed and backed up. Approximately 30 minutes later and half a mile behind the scene of the original accident, a second and third accident occurred. One of the vehicles involved in the third accident — a five-car chain-reaction collision — caught fire and the gas tank exploded, resulting in the deaths of the two occupants. Based upon these deaths, defendant was charged with reckless endangerment in the first degree and two counts of criminally negligent homicide. A jury acquitted defendant of reckless endangerment, but convicted him of the criminally negligent homicide counts. County Court then sentenced defendant as a second felony offender to two concurrent prison sentences of 2 to 4 years, and he now appeals.

We are persuaded by defendant's argument that, even if his conduct rose to the level of criminal negligence (see Penal Law § 15.05 [4]), it cannot be considered to be a sufficiently direct cause of the victims' deaths so as to hold him criminally responsible (see Penal Law § 125.10).^[1] We reach this conclusion after a careful review of the proof of the element of causation, beginning with the initial accident. The evidence at trial establishes that defendant caused the vehicle in which he was a passenger to crash into the guardrail of a bridge carrying the two westbound lanes of the highway over a river. The disabled vehicle then blocked the right-hand lane, reducing traffic in the area of the accident to one lane. Police responded to the scene, set up flares and called for a tow truck and for the Department of Transportation (hereinafter DOT) to respond. Some 30 minutes after the original accident, while still waiting for a tow [1377] truck, traffic had backed up almost half a mile to the east when the second accident occurred. The driver of a minivan approached the backed-up traffic at a high rate of speed while distractedly tuning his radio. He slammed on his brakes, his minivan skidded out of control and hit a guardrail, and it eventually came to rest on the right-hand shoulder of the highway facing in the wrong direction. A DOT truck responding to the initial accident came upon the minivan, pulled over and activated its lights to warn motorists of the second accident. Within minutes of the second accident and approximately 20 to 30 feet away, the third accident occurred when the driver of the first of the five vehicles involved changed lanes in an attempt to avoid the DOT truck, rear-ending the second vehicle in this chain-reaction collision. The first vehicle was then rear-ended by a third vehicle, pushing the second vehicle forward into a fourth vehicle which, in turn, was pushed forward into a fifth vehicle. The force of these collisions caused the gas tank in the second vehicle to rupture and it then burst into flames, killing the driver and her daughter.

In determining whether defendant's conduct in causing the first accident can be considered to be a cause of the victims' deaths so as to impose criminal liability, we employ a two-step analysis. The first step is to examine whether defendant's conduct set in motion the events that led to the victims' deaths (see People v DaCosta, 6 NY3d 181, 185 [2006]; People v Matos, 83 NY2d 509, 511 [1994]). We agree with County Court's observation that this "but for" determination is easily reached here. Absent the initial accident caused by defendant, traffic would not have slowed down and there would have been no occasion for the subsequent accidents.

The second step of our analysis is more difficult. It requires a finding that defendant's conduct was a "`sufficiently direct cause of the ensuing death[s]'" (People v Stewart, 40 NY2d 692, 697 [1976] [emphasis omitted], quoting People v Kibbe, 35 NY2d 407, 413 [1974]). "[A]n act `qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen'" (People v DaCosta, 6 NY3d at 184, quoting People v Matos, 83 NY2d at 511). A connection between the conduct and the death that is obscure or "merely probable" will not suffice (People v Phippen, 232 AD2d 790, 791 [1996] [internal quotation marks and citations omitted]). On the other hand, we note that the mere lapse of time will not necessarily serve to break the chain of causation (see e.g. Matter of Anthony M., 63 NY2d 270, 275-276 [1984]; People v Kibbe, 35 NY2d at 410-411). Nor does a defendant's conduct need to be the sole cause of death in [1378] order for criminal responsibility to attach (see People v DaCosta, 6 NY3d at 184; People v Lapan, 289 AD2d 698, 700 [2001], lv denied 97 NY2d 756 [2002]).

The case of People v Kibbe (supra) is instructive. There, the defendants left the victim stranded at the side of a darkened, isolated roadway in the freezing cold without his glasses while he was lightly clothed and visibly intoxicated (id. at 410). Approximately half an hour later, the victim was sitting in the middle of the roadway where he was struck and killed by an oncoming vehicle (id. at 411). In Kibbe, the evidence of causation was found to be sufficiently direct because the victim's death was a directly foreseeable consequence of the defendants' act of abandoning him on the side of the road (id. at 413; see People v Matos, 83 NY2d at 511). Simply put, the defendants' conduct directly involved the victim. The same can be said for cases where a robbery or burglary of a victim leads to a heart attack that causes the victim's death (see e.g. Matter of Anthony M., 63 NY2d at 276-279), or where a police officer is killed while chasing a fleeing suspect (see e.g. People v DaCosta, 6 NY3d at 184; People v Matos, 83 NY2d at 511).

Here, the People failed to present evidence directly linking defendant's act to the victims' deaths (see People v Stewart, 40 NY2d at 698; People v Phippen, 232 AD2d at 791). Although the accident reconstructionist called as a witness by the People provided an opinion as to the sequence of the five-car collision, he could not estimate the speed of the vehicles involved, he did not attempt to reconstruct the initial accident and he offered no opinion to support the conclusion that the third and fatal accident was a foreseeable result of the initial accident (compare Matter of Anthony M., 63 NY2d at 281; People v Lapan, 289 AD2d at 700-701).

Significantly, were we to consider the circumstances here in a civil tort law context, where the quantum of proof required to establish causation is much less (see People v Warner-Lambert Co., 51 NY2d 295, 306 [1980], cert denied 450 US 1031 [1981]; People v Kibbe, 35 NY2d at 412), defendant's conduct would not be found to be the cause of the victims' deaths. In civil cases involving chain reactions, if traffic is able to avoid a negligently stopped vehicle but subsequent accidents occur, the negligence of the initial vehicle generally will not be considered the proximate cause of the subsequent accidents (see e.g. Daley v Pelzer, 100 AD3d 949, 950-951 [2012]; Ali v Daily Pita Bakeries, Inc., 35 AD3d 330, 331 [2006]; Good v Atkins, 17 AD3d 315, 316 [2005]). Here, there is ample evidence that traffic was slowed and backed up for approximately 30 minutes after the initial accident, [1379] yet vehicles were able to negotiate the accident scene and avoid the disabled vehicle in which defendant had been a passenger. Furthermore, motorists had been warned about the initial accident by law enforcement's placement of flares on the road and there was evidence that the negligence of the drivers involved in the second and third accidents were intervening causes of the events leading to the deaths of the victims.

In short, the evidence here did not establish that defendant's conduct directly involved the two victims so as to impose criminal liability. Given the lack of evidence to support a finding that defendant's conduct was a sufficiently direct cause of the victims' deaths, the charges must be dismissed (see People v Bleakley, 69 NY2d 490, 495 [1987]).

Ordered that the judgment is reversed, on the facts, and indictment dismissed.

[1] Defendant's challenge to the legal sufficiency of the evidence is unpreserved (see People v Lane, 7 NY3d 888, 889 [2006]), however, we necessarily review the sufficiency of the evidence on each element in our review of the weight of the evidence (see People v McCray, 102 AD3d 1000, 1004 n 2 [2013]; People v Newkirk, 75 AD3d 853, 855 [2010], lv denied 16 NY3d 834 [2011]).