        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

368
KA 13-01176
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MATTHEW A. DAVIS, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

MATTHEW A. DAVIS, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered April 18, 2013. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts), burglary in the first degree and robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of two counts of murder in the second degree and dismissing
counts one and two of the indictment and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts of murder in the second degree
(Penal Law § 125.25 [3]) and one count each of burglary in the first
degree (§ 140.30 [2]) and robbery in the first degree (§ 160.15 [1]).
According to the evidence at trial, defendant and his two female
accomplices came up with a plan to rob a man whom one of the
accomplices had befriended on Facebook. Pursuant to the plan, the
accomplices made arrangements with the victim to meet him alone at his
apartment and, after socializing with the victim for a while, one of
the accomplices left the apartment and held the door open so that
defendant could enter. As defendant entered the apartment, the
remaining accomplice fled, and a struggle ensued between defendant and
the 41-year-old victim, who was overweight and had heart disease. At
some point during or after the altercation, the victim suffered a
fatal heart attack. Defendant left the apartment with a bag of stolen
property, and the victim’s body was found by relatives two days later.
According to the autopsy report, the victim sustained a fractured jaw,
lacerations on his face, and abrasions on his knees and right elbow.
The physician who performed the autopsy concluded that the cause of
death was “Hypertensive Cardiovascular Disease,” with obesity being a
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                                                         KA 13-01176

contributing factor.

      We agree with defendant that the evidence is legally insufficient
to support the conviction of the felony murder counts because the
People failed to prove beyond a reasonable doubt that his actions
caused the victim’s death. A person is guilty of felony murder when,
during the commission or attempted commission of an enumerated felony,
either the defendant or an accomplice “causes the death of a person
other than one of the participants” (Penal Law § 125.25 [3]). A
person “causes the death” of another person “when the . . . culpable
act is ‘a sufficiently direct cause’ of the death so that the fatal
result was reasonably foreseeable” (People v Hernandez, 82 NY2d 309,
313-314 [emphasis added]). Such a culpable act is a sufficiently
direct cause of death when it is “an actual contributory cause of
death, in the sense that [it] ‘forged a link in the chain of causes
which actually brought about the death’ ” (Matter of Anthony M., 63
NY2d 270, 280, quoting People v Stewart, 40 NY2d 692, 697). “An
obscure or a 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, 265 NY 100,
108).

     Here, we conclude that the People failed to prove beyond a
reasonable doubt that it was reasonably foreseeable that defendant’s
actions, i.e., unlawfully entering the victim’s apartment and
assaulting him, would cause the victim’s death. As noted, the victim
died of a heart attack, and the injuries inflicted upon him by
defendant were not life threatening. Indeed, the most serious injury
inflicted was a fractured jaw. Although the Chief Medical Examiner
testified for the People at trial that defendant caused the victim’s
death, she explained that her opinion in that regard was based on her
assertion that, “but for” defendant’s actions, the victim would not
have died of a heart attack. As the court properly instructed the
jury, however, “more than ‘but for’ causation [is] required” to
establish felony murder (Hernandez, 82 NY2d at 318). Notably, the
Chief Medical Examiner did not testify that defendant’s culpable act
was a direct cause of the death or that the fatal result was
reasonably foreseeable. We thus conclude that the evidence is legally
insufficient to establish that defendant committed felony murder, as
charged in counts one and two of the indictment, and we therefore
modify the judgment accordingly.

      We reject defendant’s further contention that the remaining
counts, charging burglary and robbery in the first degree, must be
dismissed because the People failed to corroborate the testimony of
the accomplice who testified at trial, as required by CPL 60.22 (1).
The accomplice’s testimony was amply corroborated by, inter alia, a
surveillance video from a camera inside the victim’s apartment
building and telephone records showing numerous cell phone calls
between defendant and the accomplice shortly before and immediately
after the crimes were committed (see generally People v Reome, 15 NY3d
188, 191-192; People v Taylor, 87 AD3d 1330, 1331, lv denied 17 NY3d
956).
                                 -3-                           368
                                                         KA 13-01176

     We have reviewed defendant’s remaining contentions in his main
and pro se supplemental briefs and conclude that none warrants
reversal or further modification of the judgment.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
