State of New York                                                     OPINION
Court of Appeals                                       This opinion is uncorrected and subject to revision
                                                         before publication in the New York Reports.




 No. 86
 The People &c.,
         Respondent,
      v.
 Stan XuHui Li,
         Appellant.




 Raymond W. Belair, for appellant.
 Vincent Rivellese, for respondent.




 FAHEY, J.:

       Here, the Appellate Division rejected defendant’s challenges to his conviction of

 two counts of manslaughter in the second degree. We affirm the Appellate Division order,

 insofar as appealed from.


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                                             I.

       Defendant, then a physician board-certified in anesthesiology and pain

management, was accused of running a “pill mill” at his Queens pain management clinic.

During a lengthy jury trial, the People presented evidence that defendant prescribed

medically unnecessary high doses of opioids, alprazolam, and other controlled substances

as a first resort. Defendant generally did not verify the source of the pain complained of

by the patient for which the patient sought the controlled substances, order diagnostic tests

for objective confirmation of the existence of the pain, or consider other pain management

treatment options. He conducted little to no physical examination. Defendant often

prescribed heavy doses of whatever medication his patients requested to alleviate their

complaints of pain. He required payment in cash and charged extra for, among other things,

higher doses of opioids. Several of defendant’s former patients testified at trial that they

were opioid addicts. They testified that they used the drugs defendant prescribed them to

get high, rather than for legitimate pain management. Indeed, defendant was advised by

other medical practitioners and patients’ family members that several of his patients were

addicted to opioids and at risk of dying from opioid abuse.

       Two of defendant’s patients, Joseph Haeg and Nicholas Rappold, died of overdoses

caused by a combination of oxycodone and alprazolam on December 29, 2009 and

September 14, 2010, respectively, shortly after filling prescriptions for such drugs issued

by defendant. Pills from those prescriptions were found in their possession when their

bodies were discovered. Defendant was charged with two counts of manslaughter in the

second degree (see Penal Law § 125.15 [1]) for the deaths of Haeg and Rappold, along

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with multiple other crimes related to Haeg, Rappold, and a number of other patients.

       Defendant was ultimately convicted of 2 counts of manslaughter in the second

degree, 3 counts of reckless endangerment in the first degree, 3 counts of reckless

endangerment in the second degree, 170 counts of criminal sale of a prescription, 1 count

of scheme to defraud in the first degree, 2 counts of grand larceny in the third degree, 9

counts of falsifying business records in the first degree, and 8 counts of offering a false

instrument for filing in the first degree. The Appellate Division unanimously affirmed (155

AD3d 571 [1st Dept 2017]), and a Judge of this Court granted defendant leave to appeal

(31 NY3d 1119 [2018]).

       On this appeal, defendant challenges only his conviction of two counts of

manslaughter in the second degree. He raises two contentions. First, defendant argues

that, as a matter of law, he cannot be convicted of any homicide offense for providing

controlled substances that result in an overdose death. Second, defendant asserts that his

conviction on the manslaughter counts is not supported by legally sufficient evidence.

                                            II.

       Defendant is incorrect that, as a matter of law, his conduct may not be prosecuted

as a homicide offense. He relies heavily on People v Pinckney (38 AD2d 217 [2d Dept

1972]), where the Appellate Division upheld the dismissal of counts of an indictment

charging manslaughter in the second degree and criminally negligent homicide after the

defendant sold heroin to the victim, who later died after injecting it (see id. at 218). The

Appellate Division reasoned that the legislature had already provided penalties in the Penal

Law for the sale of dangerous drugs but had not amended the homicide provisions of the

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                                           -4-                                       No. 86

Penal Law “to include homicide by the selling of dangerous drugs” (id. at 220-221).

        This Court affirmed the Appellate Division order in Pinckney without opinion (32

NY2d 749 [1973]). The precedential value of such a ruling is minimal. An affirmance

without opinion constitutes approval of only the result reached and “does not imply

approval of everything contained in the opinion of the court below” (People ex rel. Palmer

v Travis, 223 NY 150, 156 [1918]; see also Matter of Clark, 275 NY 1, 4 [1937]; Rogers

v Decker, 131 NY 490, 493 [1892]). We disagree with our dissenting colleague that our

affirmance in Pinckney, which involved an indictment alleging a one-time sale of heroin

and the instruments for injecting it, forecloses the prosecution of defendant for a homicide

offense under the very different factual circumstances presented here (see dissenting op at

7-9).

        Subsequent decisions from this Court refute defendant’s assertion that a person who

provides dangerous drugs that result in death can never, under any circumstances, be

prosecuted for homicide (see People v Galle, 77 NY2d 953, 955-956 [1991]; People v

Cruciani, 36 NY2d 304, 305-306 [1975]). Although in those cases, the defendants injected

the victims with drugs, we did not state that this was a necessary element, as a matter of

law, for homicide charges to be sustained. Rather, the defendants’ injection of the drugs

in those cases was one piece of evidence that supported the homicide charges and that

distinguished those cases from Pinckney (see Cruciani, 36 NY2d at 305-306).

        Insofar as the Appellate Division reasoned in Pinckney that the defendant could not

be charged with a homicide offense because the legislature had criminalized the sale of

illegal drugs but had not amended Penal Law article 125 to include a specific reference to

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                                            -5-                                       No. 86

death caused by the sale of drugs (see Pinckney, 38 AD2d at 220-221), that rationale was

flawed. “As a general rule, a statutory prohibition against a particular type of conduct will

not be deemed to constitute the exclusive vehicle for prosecuting that conduct unless the

Legislature clearly intended such a result” (People v Duffy, 79 NY2d 611, 614 [1992]).

       There is no basis to conclude that the legislature intended to exclude from the ambit

of the homicide statutes the prosecution of a defendant who, with the requisite mens rea,

engages in conduct through the sale or provision of dangerous drugs that directly causes

the death of a person. The fact that the legislature has separately criminalized the illegal

sale of controlled substances does not require a different conclusion (see id. at 614-615).1

We agree with the Appellate Division that “all that was needed for the manslaughter charge

to be sustained was for the People to satisfy its elements” (155 AD3d at 574).

                                            III.

       We further conclude that defendant’s conviction of two counts of second-degree

manslaughter is supported by legally sufficient evidence. “A verdict is legally sufficient

when, viewing the facts in a light most favorable to the People, ‘there is a valid line of

reasoning and permissible inferences from which a rational jury could have found the

elements of the crime proved beyond a reasonable doubt’ ” (People v Danielson, 9 NY3d

342, 349 [2007], quoting People v Acosta, 80 NY2d 655, 672 [1993]). “A sufficiency

inquiry requires a court to marshal competent facts most favorable to the People and



1
  We disagree with defendant that any inferences can be drawn from failed attempts in the
legislature to amend the homicide statutes (see People v Ocasio, 28 NY3d 178, 183 n 2
[2016]).
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determine whether, as a matter of law, a jury could logically conclude that the People

sustained its burden of proof” (Danielson, 9 NY3d at 349). “This deferential standard is

employed because the courts’ role on legal sufficiency review is simply to determine

whether enough evidence has been presented so that the resulting verdict was lawful”

(Acosta, 80 NY2d at 672).

       Importantly, “[i]n determining the legal sufficiency of the evidence for a criminal

conviction we indulge all reasonable inferences in the People’s favor, mindful that a ‘jury

faced with conflicting evidence may accept some and reject other items of evidence’ ”

(People v Carrel, 99 NY2d 546, 547 [2002], quoting People v Ford, 66 NY2d 428, 437

[1985]). It is the “province of the jury” to assess witness credibility (People v Calabria, 3

NY3d 80, 82 [2004]), and we therefore assume on a legal sufficiency review that the jury

credited the People’s witnesses (see People v Gordon, 23 NY3d 643, 649 [2014]).

                                     A. Recklessness

       To convict defendant of second-degree manslaughter, the People were required to

prove beyond a reasonable doubt that defendant “recklessly cause[d] the death” of Haeg

and Rappold (Penal Law § 125.15 [1]).

              “A person acts recklessly with respect to a result or to a
              circumstance described by a statute defining an offense when
              [that person] is aware of and consciously disregards a
              substantial and unjustifiable risk that such result will occur or
              that such circumstance exists. The risk must be of such nature
              and degree that disregard thereof constitutes a gross deviation
              from the standard of conduct that a reasonable person would
              observe in the situation” (Penal Law § 15.05 [3]).

A conviction for reckless manslaughter “require[s] that there be a ‘substantial and


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unjustifiable risk’ that death . . . will occur; that the defendant engage in some blameworthy

conduct contributing to that risk; and that the defendant’s conduct amount to a ‘gross

deviation’ from how a reasonable person would act” (People v Asaro, 21 NY3d 677, 684

[2013], quoting Penal Law § 15.05 [3]). The conduct must be “the kind of seriously

blameworthy carelessness whose seriousness would be apparent to anyone who shares the

community’s general sense of right and wrong” (Asaro, 21 NY3d at 685 [internal quotation

marks and citation omitted]).

        The People’s considerable evidence with respect to defendant’s prescribing

practices on a broader scale, which included testimony from several patients and their

family members, was relevant as context to assess his mens rea on the manslaughter

charges with respect to Haeg and Rappold. The People presented evidence that patients

were not required to make appointments at defendant’s clinic and were required to pay in

cash.    The clinic was open only on weekends, yet defendant wrote over 21,000

prescriptions for controlled substances between 2008 and 2011, most of those for a

substance containing oxycodone or alprazolam (Xanax). From January 2008 to January

2011, defendant increased his prescribing of controlled substances by 683%. On a single

day in January 2011, for example, defendant saw 94 patients at his clinic.

        Defendant generally charged $100 per office visit, and he increased the charge to

$150 if a patient returned early for more pills, had a friend or family member pick up the

prescription, was obtaining prescriptions from other doctors, or wanted a higher daily dose

of opioids. Patients testified that he generally prescribed whatever they requested, so long

as they had the requisite cash payment. Physical examinations were either cursory or non-

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                                             -8-                                        No. 86

existent. Defendant usually did not order diagnostic tests, and if he did, he did not change

his prescribing practices if a patient failed to comply with tests that he did order.

       The People’s expert, Dr. Gharibo, testified that defendant made no attempt to

consider non-opioid pain management treatment for his patients, despite his training in

other pain management options and the addictive nature of the drugs he was prescribing.

Defendant disregarded warning signs that his patients were abusing their medication and

were addicted to opioids, such as early visits, obtaining prescriptions from other doctors,

deterioration in physical appearance, and, in some cases, direct warnings from family

members and hospitals that defendant’s patients had overdosed. Defendant did not change

his prescribing practices until law enforcement began investigating him in 2011.

Defendant altered medical records in response to an investigation request from the New

York State Health Department’s Office of Professional Medical Conduct.

       According to the People’s witnesses, there was no basis for defendant’s prescription

of Xanax to a number of patients, including Haeg and Rappold, since that drug had no

legitimate pain-relieving function.     The People’s witnesses also testified about the

“synergistic respiratory depression” effect of opioids and Xanax when taken together.

Those witnesses explained that oxycodone has a respiratory depression effect that, if taken

in large enough doses, will cause a patient to stop breathing entirely. Xanax, also a

depressant, exacerbated that effect when taken together with oxycodone, such that smaller

doses of oxycodone could cause respiratory failure. Dr. Gharibo testified that Xanax is

known to be highly addictive in combination with opioids, that addicts sometimes

requested the medications together in order to enhance their narcotic highs, and that the

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                                            -9-                                      No. 86

combination of opioids and Xanax greatly increased the risk of a fatal overdose. Defendant

was highly trained in pain management and the interaction and potential addictiveness of

these drugs.   Yet he frequently prescribed oxycodone and Xanax together without

documentation as to why that combination of prescriptions was medically necessary for a

particular patient. According to Dr. Gharibo, defendant’s prescriptions of high doses of

opioids and Xanax were not attempts to treat legitimate pain based on reasoned medical

judgment but rather were designed to create and feed a cycle of craving and addiction.

With respect to one of defendant’s prescriptions written for a different patient, Dr. Gharibo

testified that it was “an overdose waiting to happen.”

       Unlike the evidence with respect to some of defendant’s surviving patients, the

People did not present evidence that defendant was directly informed that the deceased

patients, Haeg and Rappold, were addicts or had previously overdosed on medications he

prescribed. Nevertheless, viewing the evidence in the light most favorable to the People,

as we must, and giving the People the benefit of all reasonable inferences, we conclude

that a rational jury could have found that defendant was aware of and consciously

disregarded a substantial and unjustifiable risk that his prescription practices would result

in the deaths of Haeg and Rappold.

       Dr. Gharibo testified that defendant prescribed opioids to Haeg on the first visit.

There was no diagnostic workup, no attempt to determine whether non-opioid treatments

could be effective, and no verification of the information Haeg gave him about receiving

high doses of opioids from other doctors. Although Haeg gave defendant an MRI from

2005 showing a central L 5-1 herniation, Dr. Gharibo testified that this was a “general

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                                          - 10 -                                    No. 86

finding” that was “not necessarily diagnostic.” Defendant ordered another MRI for Haeg

but did not change his prescribing practices after Haeg failed to obtain one. Instead,

defendant continued to prescribe high doses of short-acting opioids, which Dr. Gharibo

testified would create a cycle of craving and withdrawal. When Haeg complained of

increased pain, defendant added a prescription for Percocet (oxycodone and

acetaminophen), without determining the reason for the increased pain. Defendant also

prescribed Xanax, an anti-anxiety medication, to Haeg without any indication that Haeg

suffered from anxiety and without any other documented medical basis. Furthermore,

Haeg returned early for his medications three times before he overdosed in December 2009,

which Dr. Gharibo testified should have alerted defendant that Haeg had an addiction and

was unlikely to take his medications as prescribed. According to Dr. Gharibo, defendant

created a “prescription regimen to enhance an addict’s high.” On December 26, 2009,

three days before he was discovered dead from an overdose, defendant prescribed Haeg

oxycodone, Percocet, and Xanax, among other medications. Dr. Gharibo testified that this

specific prescription defendant issued to Haeg on December 26, 2009 created a “very high”

risk that “covered the whole range of morbidity and mortality,” including “overdosing due

to misusing [the] medication and dying from respiratory death.” In addition, after the

medical examiner notified defendant of Haeg’s death and requested a copy of defendant’s

patient file, defendant made several alterations to Haeg’s chart to make it appear as if he

had taken a more complete patient medical history.

       Rappold first saw defendant in July 2009, complaining of pain due to a fall.

Defendant did not consider any non-opioid treatments for Rappold, who was then 20 years

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                                             - 11 -                                     No. 86

old, before prescribing a high dose of opioids to him on that first visit. Dr. Gharibo testified

that defendant conducted only a cursory physical examination, ordered no diagnostic

testing, and did not diagnose the source of Rappold’s pain. When Rappold returned to

defendant over a year later, complaining of pain from another fall, defendant again failed

to order diagnostic tests to objectively assess the complaint of pain and conducted little to

no physical examination. Instead, defendant prescribed oxycodone and Xanax, without

any indication that Rappold suffered from anxiety or needed Xanax for any other reason.

Dr. Gharibo testified that this high-dose prescription was designed to create a cycle of

craving and not to treat legitimate pain. Rappold returned six days later, complaining that

he had lost his prescription. Without checking to see whether Rappold had, in fact, filled

that prescription, defendant prescribed Percocet and Xanax at a decreased dose, with no

explanation as to the change in prescription. On September 11, 2010, three days before he

died, Rappold told defendant that the Percocet and Xanax were not working, so defendant

returned to the earlier prescription, which constituted a significant increase in Rappold’s

daily dose of oxycodone and Xanax. Dr. Gharibo opined that this prescription created a

“high probability of overdose and death” even if Rappold took it exactly as prescribed.

       Viewing that evidence in the light most favorable to the People, we conclude that

the evidence was sufficient to support the jury’s finding that defendant acted recklessly. A

rational juror could have concluded, based on a valid line of reasoning and permissible

inferences, that defendant was aware of and consciously disregarded a substantial and

unjustifiable risk that Haeg and Rappold would take more drugs than prescribed and would

die by overdose, and, given defendant’s position as their medical doctor, that defendant’s

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conduct constituted a “gross deviation from the standard of conduct that a reasonable

person would observe in the situation” (Penal Law § 15.05 [3]).

       We disagree with our dissenting colleague that we have created a rule whereby “a

reckless doctor is criminally liable for all deaths of patients under his or her care . . .

irrespective of whether the doctor knew or should have known that the deceased patient

would abuse the prescription medicine and would die as a result of the abuse” (dissenting

op at 3). Rather, we agree with the dissent that in order to uphold defendant’s conviction

of two counts of manslaughter, we must conclude that the People proved, by legally

sufficient evidence, that defendant was aware of and consciously disregarded a substantial

and unjustifiable risk that Haeg and Rappold specifically would abuse their medications

and die as a result. We simply disagree with the dissent that, viewing the evidence in the

light most favorable to the People, that standard was not met here. As explained, while the

record here may not contain evidence that defendant was directly told that Haeg and

Rappold were abusing their prescriptions or previously had come close to death by

overdose, the record does contain evidence from which the jury could infer that defendant

was aware of and consciously disregarded a substantial and unjustifiable risk that Haeg and

Rappold were abusing the prescription drugs that defendant provided and would die as a

result. We further disagree with the dissent that defendant’s prescribing practices as to

other patients were irrelevant to his mens rea as it pertained to Haeg and Rappold

specifically.

                                      B. Causation

       The People also were required to prove that defendant’s conduct was a “sufficiently

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direct cause” of death, and that there was not “an obscure or merely probable connection”

between defendant’s conduct and the deaths (People v Stewart, 40 NY2d 692, 697 [1976]

[emphasis and internal quotation marks omitted]). Defendant’s conduct must “set[ ] in

motion the events which ultimately result in the victim’s death” (People v Matos, 83 NY2d

509, 511 [1994]). Nevertheless, defendant’s actions “need not be the sole cause of death,”

and defendant “need not commit the final, fatal act to be culpable for causing death” (id.;

see Matter of Anthony M., 63 NY2d 270, 280 [1984]).         As we recently summarized, a

defendant’s conduct constitutes a sufficiently direct cause of death when the People prove

“(1) that defendant’s actions were an actual contributory cause of [the] death, in the sense

that they forged a link in the chain of causes which actually brought about the death; and

(2) that the fatal result was reasonably foreseeable” (People v Davis, 28 NY3d 294, 300

[2016] [internal quotation marks and citations omitted]).

         When Haeg’s body was discovered on December 29, 2009, the police also recovered

prescription bottles of oxycodone and Percocet, prescribed by defendant on December 26,

2009, and filled on the same date, with dozens of pills missing from each bottle. Haeg had

Xanax (among other drugs) in his system, which lowered the amount of oxycodone

necessary to kill him. The People did not prove that the Xanax Haeg ingested came from

defendant. Nevertheless, the toxicologist testified that Haeg’s oxycodone levels were so

high that it was “clearly a fatal dose.” Based on this evidence, a rational juror could

conclude that defendant’s reckless conduct was an actual contributory cause of Haeg’s

death.

         The issue is closer with respect to Rappold, but we conclude that the evidence of

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causation was legally sufficient. The evidence showed that on the night before he died,

Rappold took Xanax from a bottle prescribed by defendant two days before, and when that

pill bottle was recovered from his car, more than half of the pills prescribed were gone.

The People demonstrated that Rappold’s death on September 14, 2010 was caused by

“[a]cute intoxication due to [the] combined effects of alprazolam and oxycodone,”

meaning that although the substances were not found in his body at “overwhelmingly high

level[s],” the doses were high enough that, acting synergistically, they depressed his

respiration and caused his death. Although the People failed to prove that the oxycodone

that contributed to Rappold’s death came from defendant, the evidence supported a

conclusion that the Xanax Rappold ingested did. Thus, there is a valid line of reasoning

and permissible inferences from which the jury could conclude that defendant’s conduct

was an actual contributory cause of Rappold’s death, in the sense that it “forged a link in

the chain of causes which actually brought about the death” (Davis, 28 NY3d at 300). As

noted, defendant’s conduct need not be the sole cause of death (see Matos, 83 NY2d at

511).

        Defendant’s contention that Haeg’s and Rappold’s ingestion of the prescribed drugs

in an amount greater than he prescribed was either an intervening cause or unforeseeable

is without merit. “Even an intervening, independent agency will not exonerate defendant

unless the death is solely attributable to the secondary agency, and not at all induced by the

primary one” (Anthony M., 63 NY2d at 280 [internal quotation marks omitted]; see

Stewart, 40 NY2d at 697; People v Kibbe, 35 NY2d 407, 411-413 [1974]). With respect

to foreseeability, “the People must prove ‘that the ultimate harm is something which should

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have been foreseen as being reasonably related to the acts of the accused’ ” (Davis, 28

NY3d at 301, quoting Kibbe, 35 NY2d at 412).

       The fact that Haeg and Rappold took the substances defendant prescribed for them

in a greater dosage than prescribed is neither an intervening, independent agency nor

unforeseeable. It is a direct and foreseeable result of defendant’s reckless conduct. As

explained, viewing the evidence in the light most favorable to the People, a rational juror

could conclude that defendant was aware of and consciously disregarded a substantial and

unjustifiable risk that Haeg and Rappold would take the medications he prescribed at a

higher dose than prescribed in order to attain a narcotic high rather than for legitimate pain

management, and that they would die as a result.

       Finally, defendant argues that Dr. Gharibo’s testimony was not credible or reliable,

and that his own expert testified that defendant’s prescriptions were well within the

therapeutic range of normal dosing, supported by sound medical judgment, and could not

have caused death if taken as prescribed. Defendant points to evidence, including his own

testimony, that there was no reason for him to know that Haeg and Rappold were addicted

to opioids, that they would misuse his prescriptions, or that they would die as a result.

       These arguments, however, pertain to the weight of the evidence presented to the

jury on the manslaughter counts, an issue that we have no power to review (see Danielson,

9 NY3d at 349). If the jury’s verdict is supported by legally sufficient evidence, we have

no power to overturn the conviction on weight grounds, “regardless of our subjective

assessment of the strength of the People’s case” (People v Delamota, 18 NY3d 107, 116

[2011]). The Appellate Division rejected defendant’s arguments pertaining to the weight

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of the evidence (155 AD3d at 578), and defendant does not contend that the Appellate

Division failed to conduct a weight analysis or applied an incorrect standard (see

Danielson, 9 NY3d at 349; Acosta, 80 NY2d at 672). “[T]he limitations of our Court’s

jurisdiction prevent us from second-guessing” the Appellate Division’s determination that

defendant’s conviction on the manslaughter counts was not contrary to the weight of the

evidence (Delamota, 18 NY3d at 117).

      Accordingly, the order of the Appellate Division insofar as appealed from should

be affirmed.




                                         - 16 -
People v Stan XuHui Li

No. 86




WILSON, J. (dissenting):

         The central problem with the majority’s decision is that it contains no limiting

principle. Dr. Li was grotesquely reckless. I have no quarrel, not even a quibble, with the

majority’s conclusion that Dr. Li’s prescription practices were reckless, contrary to sound

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                                          -2-                                      No. 86

medical practice, and unlawful. Dr. Li was convicted of 170 counts of Criminal Sale of a

Prescription (Penal Law § 220.65), as well as multiple counts of Reckless Endangerment

in the First Degree (Penal Law § 120.25) and Second Degree (Penal Law § 120.20), Grand

Larceny in the Third Degree (Penal Law § 155.31 [1]), Falsifying Business Records in the

First Degree (Penal Law § 175.10), Offering a False Instrument for Filing in the First

Degree (Penal Law § 175.35), and a single count of Scheme to Defraud in the First Degree

(Penal Law § 190.65 [1] [b]). Those add up to 198 separate convictions. No doubt he is a

criminal. He has not challenged any of those convictions in this appeal.

      The two counts at issue are for Manslaughter in the Second Degree (Penal Law §

125.15 [1]), arising from prescriptions Dr. Li issued to Joseph Haeg and Nicholas Rappold,

who died when they consumed substantially larger doses of controlled substances than

those prescribed by Dr. Li. The fundamental questions are these: under what circumstances

has the legislature authorized manslaughter convictions of physicians when (a) a patient

has disregarded the prescribed dosage, resulting in death; or, more generally, (b) a

physician has made a reckless decision and a patient has died. Historically, the criminal

prosecution of medical doctors for homicide has been exceedingly rare (see R. E. Farmer

and Sarah E. McDowell, Doctors Charged with Manslaughter in the Course of Medical

Practice, 1795-2005: A Literature Review, 99 J. Royal Socy. Med. 309 [2006] [reporting

that, in the United Kingdom from 1795-2005, only 85 doctors were charged with

manslaughter for deaths resulting from their medical practice]). The United States Drug

Enforcement Agency tracks nationwide criminal convictions of doctors related to the

distribution of controlled substances. Of the 294 doctors criminally convicted from 2003-

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                                             -3-                                     No. 86

2018, only two were convicted of homicides and two pled guilty (to involuntary

manslaughter and negligent homicide, respectively) (see Cases Against Doctors¸ U.S.

Department of Justice, Drug Enforcement Administration, Diversion Control Division,

available at

https://apps2.deadiversion.usdoj.gov/CasesAgainstDoctors/spring/main?execution=e1s1

[last accessed Nov. 19, 2019]).1 The legislature has expressly provided a circumstance in

which physicians may be charged with second-degree manslaughter: assisted suicide

(Penal Law § 125.15 [2]). Other instances in which doctors have been charged with

manslaughter have been ones in which the doctor knew, or should have known, that the

doctor’s actions would likely result in that specific patient’s death.

       The rule implicitly adopted by the majority is quite different: a reckless doctor is

criminally liable for all deaths of patients under his or her care where drugs prescribed by

(or errors made by) the doctor contributed to a patient’s death, irrespective of whether the

doctor knew or should have known that the deceased patient would abuse the prescription

medicine and would die as a result of the abuse (or error).

       I assume, as the majority does, that given Dr. Li’s prescribing practices and

thousands of patients, it was foreseeable that some patient(s) of his were likely drug



1
  Out of those four cases, the facts are readily available in only one. Dr. Noel Chua was
convicted of felony murder after one of his patients overdosed and died. Dr. Chua lived
with that patient, ordered nurses to administer drugs to the patient while the patient was
high, and was explicitly told by a nurse that the patient was showing signs of addiction (see
Chua v State, 289 Ga 220 [2011]). In another, involving Dr. James Bischoff, although the
facts are not readily ascertainable, the indictment included a charge of “Robbery with a
Weapon,” suggesting that his case, too, is not similar to Dr. Li’s.
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                                             -4-                                       No. 86

abusers, and a subset of those would die from ingesting drugs he had prescribed. But unlike

the majority, I do not believe that proposition is sufficient to demonstrate the causation

necessary to sustain a conviction for manslaughter. Instead, I believe our decisional law

governing causation requires that Dr. Li had some basis to foresee that his prescriptions to

Messrs. Haeg and Rappold were likely to cause their deaths. As to certain other of Dr. Li’s

patients, the record evidence would be sufficient to support a finding of causation – but

those patients did not die. As to Messrs. Haeg and Rappold, the record evidence is

insufficient to prove causation because it fails to establish that Dr. Li had reason to foresee

the risk of their deaths in particular.

                                              I.

       A person is guilty of manslaughter in the second degree when that person

“recklessly causes the death of another person” (Penal Law § 125.15 [1]).                Here,

“recklessly” is indisputably satisfied; the difficult issue resides in “causes.” To cause the

death of another under New York law, a defendant’s actions must be ‘“a sufficiently direct

cause’ of the death so that the fatal result was reasonably foreseeable” (People v

Hernandez, 82 NY2d 309, 314 [1993], quoting People v Kibbe, 35 NY2d 407, 412 [1974]).

A defendant’s recklessness may be established, at least in part, by proof of the defendant’s

reckless conduct in circumstances other than the specific conduct resulting in the injury.

Proof of causation, however, is distinct from recklessness because foreseeability must be

established as to the specific fatal result occasioning the charge of manslaughter. In People

v Roth, a petroleum transport company and two of its managers were indicted for second-

degree manslaughter, criminally negligent homicide, reckless endangerment and several

                                             -4-
                                           -5-                                       No. 86

other crimes, resulting from an explosion that killed an employee (80 NY2d 239 [1992]).

The “Appellate Division affirmed the dismissal of the homicide charges, the reckless

endangerment charge and the charge of endangering public health, safety or the

environment” (id. at 243). We affirmed the dismissal of the reckless manslaughter and

criminally negligent homicide charges but reinstated the reckless endangerment charge.

Although all of those charges required the same proof of recklessness, we explained that

the manslaughter and criminally negligent homicide charges were legally unsupportable

for lack of causation:

       “the People were also required to submit proof from which the Grand Jury could
       conclude that the actual cause of the explosion was foreseeable. For purposes of
       criminal liability, it was not enough to show that, given the variety of dangerous
       conditions existing at the site, an explosion was foreseeable; instead, the People
       were required to show that it was foreseeable that the explosion would occur in the
       manner that it did. It was error, therefore, to instruct the Grand Jury that the
       defendants could be indicted ‘if you find that they recklessly created unsafe
       conditions that led to [the victim’s] death by a foreseeable event, namely, the
       explosion.’ Moreover, even if the Grand Jury had been properly instructed in this
       regard, the indictment on these charges could not stand”


(id. at 244 [internal citations omitted]). We reinstated the reckless endangerment charge

because, unlike the manslaughter and criminally negligent homicide charges, “there is no

requirement that the defendants’ reckless conduct cause injury or death” (id. at 245).

Although recklessness – including the foreseeability of some explosion – was sufficiently

proved for all three counts, causation was not for the manslaughter and criminally negligent

homicide charges. Likewise, to uphold Dr. Li’s manslaughter convictions, more than his

rampant recklessness must be proved. There must also be sufficient evidence from which


                                           -5-
                                              -6-                                        No. 86

the jury could have found that Dr. Li’ s treatment of Messers. Haeg and Rappold was the

direct and reasonably foreseeable cause of their deaths.

       The standard to prove causation for manslaughter is different from, and more

demanding than, the standard to prove causation in tort. As we explained in People v

Warner-Lambert Co. (51 NY2d 295 [1980]): “[w]e subscribe to the requirement that the

defendants’ actions must be a sufficiently direct cause of the ensuing death before there

can be any imposition of criminal liability, and recognize, of course, that this standard is

greater than that required to serve as a basis for tort liability” (id. at 306; see also Roth, 80

NY2d at 244). In the criminal context, a general foreseeable risk and an action that ignites

a chain of causation, resulting in death, are not sufficient to prove that a defendant caused

a specific reckless homicide (see Warner-Lambert, 51 NY2d at 305-06). Instead, the

“actual immediate, triggering cause” of the specific victim’s death must be foreseeable for

a defendant to be found guilty of manslaughter in the second degree (id. at 307).

       Our prior cases in which a defendant was found guilty of second-degree

manslaughter when the defendant had provided drugs causing an overdose, though not

involving doctors, satisfy that heightened standard of causation. In People v Cruciani, we

upheld the manslaughter conviction of a defendant who directly injected his girlfriend with

heroin, causing her death, when the evidence established that the defendant knew his

girlfriend was “completely bombed out on downs,” knew she had lost her capacity to “walk

or talk straight,” and acknowledged his injection created a substantial possibility that she

would die (36 NY2d 304, 305 [1975]). The defendant could foresee that his actions would


                                              -6-
                                            -7-                                       No. 86

be the immediate and triggering cause of his girlfriend’s death (see also People v Galle, 77

NY2d 953 [1991]). Analogously, if Messrs. Haeg or Rappold had walked into Dr. Li’s

office, and Dr. Li had fed them an overdose of Oxycodone and/or Xanax, causation would

be firmly established. But under the rationale advanced by the majority here, every heroin

dealer may be convicted of manslaughter for the deaths of all users overdosing from drugs

supplied by that dealer. That, of course, is not the law, even though, just as Dr. Li should

have known that some patients of his would overdose given his reckless prescription

practices, heroin dealers know that some customers, too, will overdose.

       The majority’s treatment of a case involving a heroin dealer, People v Pinckney (38

AD2d 217 [2d Dept 1972], affd, 32 NY2d 749 [1973]), is flawed. The Appellate Division

held that a heroin dealer could not be prosecuted for manslaughter when one of his

customers died from an overdose of the drugs he provided, using paraphernalia he also

provided.   Although we affirmed Pinckney, the majority notes that our summary

affirmance has “minimal” precedential value and ‘“does not imply approval of everything

contained in the opinion of the court below’” (majority op at 4 [internal citation omitted]).

Nevertheless, our summary affirmance in Pinckney poses a severe problem for the majority

and cannot be brushed aside.

       CPL 470.05 (2) states: “[f]or purposes of appeal, a question of law with respect to

a ruling or instruction of a criminal court during a trial or proceeding is presented when a

protest thereto was registered, by the party claiming error, at the time of such ruling or

instruction or at any subsequent time when the court had an opportunity of effectively


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                                            -8-                                       No. 86

changing the same.” In Pinckney, the defendant made only two arguments in the court of

instance. First, he argued that the facts in the indictment did not meet the legal definition

of recklessness, and second, he argued that “the legislature intended that manslaughter in

the second degree and criminal negligent homicide should not apply in this type of case”

(Affidavit of Edward S. Panzer in Support of Motion, Record on Appeal at 15). Because

we are powerless to decide a criminal appeal on an issue not raised in the court of instance,

our summary affirmance in Pinckney must have adopted one or the other of those grounds.

       If Pinckney’s holding rests on the lack of specific legislative action, it applies here

as well, because the legislature has enacted no homicide statutes specifically related to the

reckless prescription of medicines. If, instead, it rests on the indictment’s failure to

establish recklessness, that too would bar Dr. Li’s manslaughter convictions.            The

indictment in Pinckney charged that the defendant: “wilfully [sic], wrongfully and

unlawfully did recklessly cause the death of one Francis John Muthig . . . by then and there

selling to and providing said Francis John Muthig with a quantity of the narcotic drug

Heroin which said Francis John Muthig immediately, with the instruments furnished to him

by said William L. Pinckney, prepared for injection and did inject into his body, as a direct

result of which said Francis John Muthig thereafter, on the 5th day of April, 1970, died,

the said William L. Pinckney knowing the said Heroin to be a dangerous drug” (Indictment,

Record on Appeal at 7). If that indictment is insufficient to charge Mr. Pinckney with

manslaughter, Dr. Li cannot be convicted of it either.




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                                             -9-                                        No. 86

       The majority’s treatment of Pinckney is also instructive as to its view of the legal

standard for causation. In Pinckney, both the Appellate Division majority and concurrence

noted that prior cases upheld manslaughter convictions for the sale of a poison because the

“obvious result of its use is death, [which] was known to the seller at the time of the sale”

(id. at 219-20, citing People v Licenziata, 199 App Div 106 [2d Dept 1921] and People v

Voelker, 220 App Div 528 [4th Dept 1927]). The Appellate Division then distinguished

those cases from the case of a defendant whose sale of heroin resulted in a user’s death.

Pinckney pointed out that, as to heroin, “[a]lthough it is a matter of common knowledge

that the use of heroin can result in death, it is also a known fact that an injection of heroin

into the body does not generally cause death” (Pinckney, 38 AD2d at 220; see also id. at

223-24 [Shapiro, J., concurring]).       The same is true of opioids other than heroin,

particularly when prescribed by a doctor: they can, but do not usually, result in death.

Presumably, the majority’s reason for brushing Pinckney aside is to adopt a different rule

of causation, one in which the reckless distribution of a dangerous drug is itself sufficient

to establish causation – including foreseeability – from deaths resulting from a defendant’s

distribution of that drug. Otherwise, Dr. Li could not be convicted of manslaughter.

       That said, I do agree with the majority that oversight or physical administration of

the fatal drugs is not “a necessary element, as a matter of law, for homicide charges to be

sustained” (majority op at 4). For example, evidence regarding some of Dr. Li’s other

patients was sufficient to allow a trier of fact to find that Dr. Li’s continued prescription of

controlled substances to those patients would foreseeably result in a substantial risk of their


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                                           - 10 -                                    No. 86

deaths. One patient explicitly told Dr. Li that she was addicted to Oxycodone and Xanax;

that same patient’s mother also called Dr. Li and implored him not to prescribe Soma to

her daughter because it “was something that really could end her life” (SA.1342). As to

certain other patients, Dr. Li knew they had previously overdosed on the same drugs he

was prescribing; that knowledge would have allowed a trier of fact to conclude that Dr. Li

could foresee that those patients would overdose again, with the attendant risk of death. 2

Had Mr. Rappold, or his mother, alerted Dr. Li to the fact that a few months before his

death, Mr. Rappold had successfully completed an opioid detoxification program that

administered Suboxone to him, that information would have been evidence suggesting that

a foreseeable result of Dr. Li’s subsequent provision of opioids to Mr. Rappold was his

death. However, the record contains no evidence that Dr. Li was aware of that information.

Such examples are not exhaustive but serve to demonstrate that the heightened standard of

causation for criminal liability can be met in circumstances where the defendant, doctor or

otherwise, does not directly administer the lethal dosage.

       By contrast, Dr. Li’s prescriptions to Messrs. Haeg and Rappold were not

foreseeably the direct cause of their deaths. Mr. Haeg originally came to Dr. Li with an

MRI showing a central L 5-1 herniation and complaining of chronic back pain that had




2
  The majority’s statement that “[w]ith respect to one of defendant’s prescriptions written
for a different patient, Dr. Gharibo testified that it was ‘an overdose waiting to happen,”’
(majority op at 9), refers to a patient whose prescriptions included not just Xanax and
Oxycontin, but Oxycodone, Opana and a Duragesic patch (containing fentanyl, a synthetic
opiate).

                                           - 10 -
                                           - 11 -                                    No. 86

persisted for 17 years, treated by opioids from his prior doctors. Dr. Li prescribed pain

medication to Mr. Haeg at the same level Mr. Haeg said he had been receiving from his

prior doctor – a far from fatal dosage if taken as instructed. In sharp contrast to certain

other of Dr. Li’s patients described above, Dr. Li had received no information to suggest

that Mr. Haeg would not take his medication as instructed. Mr. Haeg’s early visits for

medication, alone, did not indicate that his prescriptions would be the immediate and

triggering cause of his death, and on the two occasions (September 26, 2009 and December

5, 2009) that Mr. Haeg returned early, Dr. Li wrote prescriptions for 84 pills instead of the

usual 120.

       As to Mr. Rappold, Dr. Li conducted an introductory physical examination of his

new patient, who complained of pain from a fall, and prescribed him pain medication

within accepted therapeutic bounds. When Mr. Rappold returned early, explaining that he

had lost his prescription, Dr. Li issued him a prescription with a sharply reduced dose. Dr.

Li did not return Mr. Rappold’s prescription to its original dosage until Mr. Rappold told

Dr. Li that the pain medications were no longer working. Again, there was no indication

that Mr. Rappold would not take his prescriptions as instructed and no evidence to suggest

that those prescriptions would foreseeably result in Mr. Rappold’s death. Indeed, the

evidence at trial suggested that Mr. Rappold had ingested drugs from multiple sources on

the night he died, further attenuating the claim that Dr. Li caused his death. No record

evidence indicates that Dr. Li had reason to believe Mr. Rappold was obtaining drugs from

others, likely illegally.


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                                           - 12 -                                    No. 86

                                             II.

       Our several cases relied on by the majority to describe the causation requirement

for homicide do not support the conclusion that, absent some reason for a physician to

believe that a patient will radically disregard prescribed dosages, liability for homicide

attaches if the patient dies as a result of an overdose. In People v Stewart (40 NY2d 692

[1976]), the defendant stabbed his victim in the stomach; the question was whether the

victim, who died during surgery, died as a result of the stab wound or as a result of a heart

attack occurring when the surgeons decided to repair a hernia unrelated to the stab wound.

There, we expressly stated that “something more is required” than proving that the

defendant’s conduct “forged a link in the chain of causes which actually brought about the

death,” namely, “the defendant’s actions must be a sufficiently direct cause of the ensuing

death before there can be any imposition of criminal liability” (id. at 697 [emphasis

original]). We vacated the defendant’s conviction for manslaughter, reducing it to assault.

       People v Matos (83 NY2d 509 [1994]), holds that the felony murder rule applies to

a defendant whose rooftop flight from the police resulted in the falling death of a pursuing

officer because “it should also be foreseeable that someone might fall while in hot pursuit

across urban roofs in the middle of the night” (id. at 512). Matter of Anthony M. (63 NY2d

270 [1984]), held that defendants could be held to have caused the cardiac-arrest deaths of

their assault victims, who had no prior history of cardiac trouble, where medical evidence

supported the conclusion that the stress of the assaults caused the fatal heart attacks days

later. People v Davis (28 NY3d 294 [2016]), is the same: death by cardiac arrest following


                                           - 12 -
                                            - 13 -                                     No. 86

an assault. Those cases are fundamentally different from Dr. Li’s. Unlike the defendants

in those cases, Dr. Li had no reason to foresee that Messrs. Haeg or Rappold would so

substantially deviate from the prescribed dosages as to cause their deaths.

       Although the majority asserts that “a rational juror could conclude that defendant

was aware of and consciously disregarded a substantial and unjustifiable risk that Haeg and

Rappold would take the medications he prescribed at a higher dose than prescribed in order

to attain a narcotic high rather than for legitimate pain management, and that they would

die as a result” (majority op at 15), the majority does not specify on what evidence a rational

juror could so conclude. There are only two possibilities: either it is the overall evidence

of Dr. Li’s reckless pain management practice in general – which means the majority has

adopted a rule that if a doctor’s recklessness makes it foreseeable that some patients may

die from an overdose, causation is established as to any death resulting from any patient’s

overdose — or else something about Dr. Li’s practice with regard to Messrs. Haeg and

Rappold in particular demonstrates specific foreseeability as to their deaths.

       If it is the latter, the evidence is not sufficient to establish causation. Taking Mr.

Haeg, as to whom the majority says the evidence of recklessness is stronger, most of what

the majority describes (majority op at 9-10) does not show any reasonable foreseeability

of prescription abuse, much less death.          For example, Dr. Li’s failure to verify

independently the doses prescribed by Mr. Haeg’s former doctors, or his failure to reduce

Mr. Haeg’s dosages when Mr. Haeg did not provide the updated MRI that Dr. Li requested,

do not bear on the question of foreseeability of death. Presumably, a doctor who prescribes


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                                            - 14 -                                    No. 86

Xanax to a patient without an indication that the patient has anxiety is not liable for

manslaughter if the patient takes an overdose of Xanax, although perhaps the majority’s

new rule is otherwise.

       The sole item cited by the majority that appears to bear on foreseeability is Dr.

Gharibo’s testimony that the prescription given to Mr. Haeg “three days before he was

discovered dead from an overdose…created a ‘very high’ risk that ‘covered the whole

range of morbidity and mortality,’ including ‘overdosing due to misusing the medication

and dying from respiratory death”’ (majority op at 10). But that is not what Dr. Gharibo

testified. Instead, the majority has taken his statement that the prescribed dosages created

a “very high risk, highly addictive, inappropriate misprescribing … driven to prescribe to

create addiction and potentially even create diversion and death to the individual as well as

to the people around them” (SA.0906) – which makes a clear distinction between the “very

high risk” (that Dr. Li would create an addiction) and the less foreseeable result (that he

could “potentially even create diversion and death”) – and appended it to Dr. Gharibo’s

assessment of the general risk faced by opioid addicts. That generalized risk includes a

smörgåsbord of catastrophes ranging from “falling and injuring themselves and getting hurt

in a whole variety of ways, whether it’s injuring their foot or hand or getting hit by a car,

to overdosing due to misusing their medication and dying from respiratory death.” Dr.

Gharibo’s testimony as to the litany of doom that might befall any opioid addict – from

stubbing one’s toe to death – demonstrates the lack of foreseeability of any particular result




                                            - 14 -
                                            - 15 -                                    No. 86

within that range. His testimony does not meet the standard for causation as set forth in

Warner-Lambert and Roth.

       The majority has extended homicide liability to physicians by blurring recklessness

into causation: if a doctor is generally reckless in prescribing drugs, it is foreseeable that

some patient may die; if it is foreseeable that some patient may die, causation is established

when any patient dies from an overdose of the prescribed drug(s). In applying a standard

under which doctors can be found guilty of manslaughter if they maintain reckless

prescription practices and a patient takes an overdose, the majority creates a novel and

unwelcome extension of criminal liability for physicians.

                                                 III

       The result here (holding a reckless doctor liable for homicide as a result of a

patient’s death) is inconsistent with the way errors – even grossly negligent, fatal errors –

by doctors have been historically addressed. The state licenses doctors to make sure they

are at least minimally competent, withdraws licensure if a doctor proves incompetent, and

subjects all doctors, good and bad, to tort liability under well-established law governing

medical malpractice.3 Doctors can also be found guilty of crimes other than manslaughter,




3
  In 2018, New York courts awarded $685,317,000.00 in damages in 1,535 successful
medical malpractice suits (2019 Medical Malpractice Payout Report: A complete analysis
of medical malpractice payouts as recorded by the National Practitioner Data Bank [a
computer database of the United States Department of Health and Human Services],
presented by LeverageRx, LeverageRx, available at
https://www.leveragerx.com/malpractice-insurance/2019-medical-malpractice-report/
[last accessed Nov. 19, 2019]).
                                            - 15 -
                                            - 16 -                                    No. 86

including crimes that the legislature specifically targeted at the criminal sale of

prescriptions for which Dr. Li has been convicted.

         Exactly how far today’s decision expands the homicide liability for doctors is

unclear. If a doctor recklessly prescribes drugs that interact and cause a death, will that be

considered manslaughter? If a doctor relies on a patient’s self-report of medical history or

allergies and the patient dies, will that be deemed reckless and also sufficient to establish

causation because the doctor acted without independently verifying the information,

justifying a manslaughter charge? We have previously recognized the impropriety in

conflating the causation element required in typical homicides with the causation element

required in commercial situations resulting in death (see People v DaCosta, 6 NY3d 181,

186 [2006]). I would tread much more gingerly in advancing homicide liability against

doctors than does the majority, leaving the legislature to determine, prospectively, what

criminal penalties should attach to what kinds of reckless conduct by doctors, instead of

attempting to apply to the medical profession causation rules developed in cases involving

garden-variety assaults and burglaries. To some extent, the legislature has already done

so, as evidenced by the myriad other crimes of which Dr. Li was tried and convicted,

convictions he has not appealed to this court.

*    *      *     *    *    *     *     *     *      *   *     *     *     *     *    *     *

Order insofar as appealed from affirmed. Opinion by Judge Fahey. Chief Judge DiFiore
and Judges Rivera, Stein, Garcia and Feinman concur. Judge Wilson dissents in an
opinion.


Decided November 26, 2019
                                            - 16 -
