Thursday, March 26, 2015

A wrinkle in the Penal Law; prosecutions for Manslaughter in the First Degree where the defendant did NOT intend to cause serious physical injury, but death results.

A person is guilty of Manslaughter in the First Degree when, with intent to cause serious physical injury to another person, he causes the death of such person (CJI2d [NY] Penal Law § 125.20[1]).  Penal Law § 10(10) defines “serious  physical  injury” as physical injury which creates a substantial risk of death, or which causes death or serious and protracted  disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

But what about the case where the defendant acts intentionally to cause the victim physical injury (but NOT serious physical injury) and death results?  Not only does this fact pattern not satisfy the elements of Manslaughter in the First Degree, there is no other applicable homicide offense in the Penal Law. The classic example is a leg-shooting or leg-stabbing case where defendant’s acts support a claim that he did NOT intend to cause a grave risk of death, but where he nonetheless severs the femoral artery, causing death.  

In some cases, a defendant’s “intent can be inferred from the act itself” (People v Bracey, 41 NY2d 296, 301 [1977] [possession of weapon during a robbery satisfied element of intent to use the weapon unlawfully against another]).  Likewise, the circumstances of some shootings, by their nature, can establish the defendant’s intent to cause serious physical injury (see, People v Vigliotti, 270 AD2d 904 [4th Dept 2000] [victim shot in chest from two feet or less during argument with defendant; proof sufficient to establish intent to cause serious physical injury]; People v Ramirez, 182 AD2d 569 [1st Dept 1992] [same]; People v Dukes, 30 AD3d 682 [3rd Dept 2006] [victim shot in back during argument over defendant’s girlfriend; proof sufficient to establish intent to cause serious physical injury]; People v Almonte, 135 AD2d 824 [2nd Dept 1987] [victim shot at point blank range]). 

The use of a weapon, depending on the manner in which it is used, may also be indicative of the intent to inflict serious physical injury (People v Haynes, 39 AD3d 562 [2nd Dept 2007] [defendant killed the victim by driving a car straight at him]); People v Lewis, 300 AD2d 827 [3rd Dept 2002] [defendant killed victim by stabbing victim causing a deep penetrating wound through the back to the heart]; People v Owens, 251 AD2d 898 [3rd Dept 1998] [defendant shot victim once and attempted to fire again]; People v Andrews, 78 AD3d 1229 [3rd Dept 2010] [intent to cause serious physical injury found where defendant repeatedly swung hammer at victim’s head in violent vertical strikes]).

The nature of the wound or mechanism of injury does not necessarily establish, without more, the element of serious physical injury.  Not every gunshot ineluctably results in serious physical injury (see, People v Gray, 30 AD3d 771 [3rd Dept 2006] [victim shot with shotgun from 20 feet away, evidence insufficient to establish serious physical injury]; see also, People v Rojas, 61 NY2d 726 [1984] [gunshot injury does not by itself establish substantial pain as required for physical injury]; People v Francis, 112 AD2d 167 [2nd Dept 1985] [same]; People v Horton, 9 AD3d 503 [3rd Dept 2004] [gunshot wound to neck insufficient to establish serious physical injury]; see also, People v Daniels, 97 AD3d 845, [3rd Dept 2012] [single stab wound to the head was insufficient to establish serious physical injury]; People v Sleasman, 24 AD3d 1041 [3rd Dept 2005] [throat slashing did not establish serious physical injury]).

On the other hand, shooting a victim in the extremities may, depending on the circumstances, evince an intent to cause serious physical injury (see, People v Grier, 261 AD2d 555 [2nd Dept 1999] [proof that defendant aimed gun at victim’s genitals and fired sufficient to establish defendant’s intent to cause serious physical injury]; People v Davis, 300 AD2d 78 [1st Dept 2002] [Victim shot in arm, proof of intent to cause serious physical injury was sufficient where defendant pointed gun at victim’s chest and she pushed it away before shot was fired]; see also, People v Linton, 21 AD3d 909 [2nd Dept 2005] [multiple shots to hip, back, and hands]; People v Garcia, 202 AD2d 189 [1st Dept 1994] [shot to kneecap]).  While not every shooting where the target is the victim’s extremities will evince an intent to cause serious physical injury, some leg-shooting cases could support a finding of an intent to cause serious physical injury or protracted loss of use of a bodily function or organ – shooting the victim point blank in the kneecap, as in Garcia, for example.

Where a defendant acts in manner specifically calculated not to cause death and with the intent to injure but not to cause serious physical injury (as in a leg-shooting or leg-stabbing case), and death results, the elements of Manslaughter in the First Degree are not satisfied, since Manslaughter in the First Degree requires a finding that the injury that defendant inflicted or intended to inflict presented a grave risk of death – i.e.,  death was a reasonably foreseeable consequence and the step from serious physical injury (posing a grave risk of death) and death itself is a relatively small one.

In such a case, the defendant’s conduct may also not be reckless as required to support a conviction for Manslaughter in the Second Degree under Penal Law § 125.15(1) where there is no evidence that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of death from shooting someone in the legs (Allstate Ins. Co. v Zuk, 78 NY2d 41 [1991]; People v Licitra, 47 NY2d 554 [1979]), absent any proof that the defendant had any medical training or knowledge of anatomy or physiology regarding the risks of a leg wound involving the femoral artery, and that such involvement could likely be fatal.
  
Even if the proof at trial establishes that the defendant was aware of the dangers of severing the femoral artery, a victim shot in the leg more often does not die or suffer serious physical injury; one whose intention is to cause injury that brings the victim a hair’s breadth away from death would not intentionally shoot the victim in the leg, since even a trained marksman could not expect to strike the femoral artery if firing at a moving target, from a distance, i the dark, etc., and while a shooter might reasonably expect to hit the victim in the leg, he could not have any reasonable expectation of causing a grave risk of death, which would require an unattainable level of precision.  Because the risk of death from shooting a victim in the leg is not of a nature and degree that disregarding such risk could constitute a gross deviation from the standard of care a reasonable person would observe, these facts would also fail to support a conviction for Manslaughter in the Second Degree (see, Penal Law 15.05[3]). 

Thus, where the shot (or stab) pattern demonstrates the absence of any intent to cause death or serious physical injury and instead reflects an extremely unlucky shot (or stab) resulting in a plainly unintentional and unpredictable death, this proof fails to satisfy the elements of Manslaughter in the First Degree or any lesser, related homicide offense. 

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