This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 169 

The People &c.,

 Appellant-Respondent,

 v.

Matthew A. Davis,

 Respondent-Appellant.

Thomas H. Brandt, for appellant-respondent.

Patricia M. McGrath, for respondent-appellant.

DiFIORE, Chief Judge:

In this appeal, we conclude that there was legally

sufficient evidence to support the jury's findings that

defendant's assault of the victim during a home invasion was an

actual contributory cause of the victim's death and that the

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victim's death, induced by the stress of the violent event, was a

reasonably foreseeable result of defendant's conduct. We

therefore modify the Appellate Division order and remit the case

to the Appellate Division. 

I.

The victim was found dead on the floor of his secondfloor apartment, lying amongst the remnants of his broken coffee

table, two days after he was assaulted during a robbery-burglary

of his home. Photographs of the scene depicted blood spatter in

the living room and blood smeared on the couch, wholly consistent

with a violent assault, as well as the victim's body lying among

the evidence of a violent encounter. Subsequent investigation

revealed the involvement of defendant and his two accomplices,

Teara Fatico and Chastity Wilson. Both Fatico and Wilson were

indicted and pleaded guilty. Fatico, who pleaded guilty to

attempted burglary, testified at trial as an accomplice as a

matter of law. The evidence at trial was as follows.

On August 21, 2011, the victim sent Fatico a private

Facebook message to which defendant, Fatico's then boyfriend,

responded on her behalf. In that message, defendant, acting as

Fatico, informed the victim that she and Wilson would be coming

over to his apartment. The three planned for Fatico and Wilson

to go to the victim's apartment and determine if it contained

valuables and drugs to steal. That night, defendant drove Fatico

and Wilson to the victim's apartment complex, which was equipped

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with a secure front door and an electronic surveillance system.1

Video clips and still photographs from that surveillance system

corroborate Fatico's testimony as to the comings and goings of

all three accomplices in the building. Those video clips show

that Fatico, Wilson, and the victim, entered the building at

12:03 a.m. and walked upstairs toward the victim's second-floor

apartment.

Inside the victim's apartment, Fatico, Wilson, and the

victim smoked marijuana. As corroborated by cell phone records,

Fatico maintained phone contact with defendant while she was with

the victim. Fatico and Wilson left the victim's apartment to

meet up with defendant. After the two accomplices told defendant

that the victim had jars of marijuana in his apartment, the

threesome moved to the next stage of the plan to rob the victim. 

Fatico sent a text to the victim, informing him that she and

Wilson would be returning to his apartment, which they did. 

Video clips show that the victim let Fatico and Wilson back into

the building at 1:37 a.m. 

Approximately 15 minutes later, Fatico left the

victim's apartment, went downstairs, and let defendant, who is

depicted on video wearing a white t-shirt draped over his head to

1 The external door of the victim's apartment building was

unlocked. That door only allowed entry into a vestibule where a

second, locked front door had to be accessed to gain entry into

the building. 

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shield his face from the surveillance cameras, into the building.2

Surveillance footage also shows defendant, with the white t-shirt

still draped over his head, on the second floor of the apartment

building in the area of the victim's apartment. Defendant

appears to be wearing gloves. Fatico, who had since exited the

building with defendant's keys, waited in defendant's van. 

Minutes later, Wilson left the building and joined her. 

Defendant phoned Fatico approximately 13 minutes later, asking to

be picked up. After exiting the victim's apartment, defendant is

captured on surveillance footage, covering his face with a jacket

and carrying a white garbage bag, in the second-floor hallway as

well as leaving the building. 

When defendant returned to the car, he was carrying the

white garbage bag. The trio drove to Fatico's house where

defendant revealed that the white bag contained jars of

marijuana, which Fatico recognized as being from the victim's

apartment. Defendant claimed that the victim told him to "just

take it and go." The victim's body was discovered in the

apartment two days later, when a family member, unable to make

contact with the victim, notified the apartment building's

maintenance supervisor.

2 Surveillance footage shows defendant, clad in the white tshirt, entering the vestibule of the building and unsuccessfully

attempting to open the second, locked door, before using his cell

phone to text Fatico and inform her that the door was locked,

preventing his entry. 

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Defendant was indicted for two counts of murder in the

second degree (felony murder) (Penal Law § 125.25 [3]), and one

count each of burglary in the first degree (Penal Law § 140.30

[2]) and robbery in the first degree (Penal Law § 160.15 [1]). 

At trial, the Chief Medical Examiner of the Erie County

Medical Examiner's Office, who did not herself prepare the

autopsy report, testified with respect to the autopsy findings as

to the victim's injuries and cause of death. The autopsy

revealed that the victim's physical injuries included: 

lacerations to the upper lip, right temple, and nose; fractures

of the lower jaw and nasal skeleton; and hemorrhage in the right

eye -- all of which, according to the medical examiner, were

consistent with blunt force injury. The victim also suffered

from the natural diseases of obesity and hypertensive

cardiovascular disease, or more specifically, enlargement of the

heart. Based on the autopsy findings, the medical examiner

testified that the cause of death was "Hypertensive

Cardiovascular Disease," with the contributing factor of obesity. 

The manner of death, however, was listed on the autopsy report as

"[u]ndetermined." The medical examiner further testified that

"[s]tress of any kind can hasten a person's demise by

cardiovascular disease" and, while the victim's physical injuries

themselves did not cause his death, "the stress that they

caused[,] . . . given [the victim's] underlying heart disease[,]

led to his death." The medical examiner opined that "but for a

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violent struggle," the victim would not have died at the time

that he did. She explained that the manner of death was

classified on the report as "[u]ndetermined" based on the

inability to discern, on the facts known, between other manners

of death, including natural and homicide. The medical examiner

testified that it was her opinion that the evidence pointed

towards a nonnatural manner of death but that the ultimate

conclusion was for the trier of fact.

The jury convicted defendant as charged. The Appellate

Division unanimously modified, on the law, by reversing

defendant's convictions for murder in the second degree and

dismissing those counts of the indictment (126 AD3d 1516 [4th

Dept 2015]). The Court held "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"

(id. at 1517). The Court opined that, despite the medical

examiner's testimony that defendant caused the victim's death,

she "did not testify that defendant's culpable act was a direct

cause of the death or that the fatal result was reasonably

foreseeable," and, thus, the evidence was legally insufficient

(id.). The judgment was otherwise affirmed, with the Court

determining that "[t]he accomplice's testimony was amply

corroborated by, inter alia, a surveillance video from a camera

inside the victim's apartment building and telephone records

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showing numerous cell phone calls between defendant and the

accomplice shortly before and immediately after the crimes were

committed" (id. at 1517-1518). Finally, the Court concluded that

defendant's remaining contentions were without merit.

A Judge of this Court granted both the People and

defendant leave to appeal (26 NY3d 966 [2015]). 

II.

The primary issue in this appeal is whether legally

sufficient evidence supported defendant's felony murder

convictions. We therefore view "the facts in a light most

favorable to the People" to determine whether "'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] [citations omitted]).

We agree with the People that the evidence at trial was

sufficient to support defendant's convictions.

A.

With respect to felony murder in the second degree, the

People were required to prove that, in the course of committing

robbery and burglary, defendant caused the death of the victim

(see Penal Law § 125.25 [3]), i.e., that defendant's conduct was

"a sufficiently direct cause" of the victim's death (see People v

Matos, 83 NY2d 509, 511 [1994]). Sufficiently direct causation

is established by proof of the following: (1) that defendant's

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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'" (Matter of Anthony M., 63 NY2d

270, 280 [1984], quoting People v Stewart, 40 NY2d 692, 697

[1976]); and (2) that "the fatal result was reasonably

foreseeable" (People v Hernandez, 82 NY2d 309, 314 [1993]). 

Here, the jury was properly instructed on the law as to the twopronged standard to establish causation. 

With respect to defendant's actions being "an actual

contributory cause of the death," we have explained that so long

as "the necessary causative link is established, other causes,

such as a victim's preexisting condition, will not relieve the

defendant of responsibility for homicide" (see Anthony M., 63

NY2d at 280). In Matter of Anthony M., the defendant grabbed the

handbag of an elderly victim with a history of heart-related

illness, causing the victim to fall to the ground (see id. at

276). The victim was hospitalized with a fractured hip and other

injuries; she died of a myocardial infarction approximately 10

days later (see id.). An expert medical witness opined that the

cause of death was the stress of the mugging, in combination with

the hip fracture and subsequent surgery, which "'precipitated the

myocardial infarction with subsequent cardiac arrest and ultimate

death'" (id. at 277). 

In the companion case People v Cable, two defendants

robbed an 89-year-old victim and his wife in their Manhattan

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apartment (see id.). The victim died of a myocardial infarction

two days later (see id. at 278). At trial, the experts disagreed

as to when the myocardial infarction occurred, but one medical

examiner opined that "the emotional and physical trauma of the

burglary caused [the victim's] heart attack" (id. at 279). With

respect to both cases, we held that the jury was entitled to

accept the expert testimony and find that causation had been

established, noting that "the testimony of the medical expert[s]

that there was a causal link [was not] so baseless or riddled

with contradiction that it was unworthy of belief as a matter of

law" (see id. at 281; see People v Ingram, 67 NY2d 897, 899

[1986] [concluding that medical expert's testimony that the

victim "died of a myocardial infarction precipitated by the

stress of finding a burglar in his home . . . was sufficient

under applicable legal standards"]).

Here, the medical examiner's testimony, in conjunction

with the crime scene evidence, established a sufficient causal

connection between defendant's infliction of blunt force trauma

injuries during the violent home invasion and the victim's death. 

Specifically, the medical examiner testified that "[s]tress of

any kind can hasten a person's demise by cardiovascular disease"

and that, here, the stress caused by the injuries inflicted by

defendant, "given [the victim's] underlying heart disease[,] led

to his death." That testimony, along with the crime scene

evidence that defendant's beating of the victim was severe and

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immediate in its consequences, "was sufficient to prove that

defendant's conduct 'set in motion and legally caused the death'

of" the victim (People v DaCosta, 6 NY3d 181, 185 [2006], quoting

Matos, 83 NY2d at 511). Thus, the jury could have reasonably

concluded that defendant's conduct was an actual contributory

cause of the victim's death. 

With respect to foreseeability of the death, the People

must prove "that the ultimate harm is something which should have

been foreseen as being reasonably related to the acts of the

accused" (People v Kibbe, 35 NY2d 407, 412 [1974], citing 1

Wharton, Criminal Law Procedure, § 169). In this case, defendant

violently attacked the victim, in his home, breaking his jaw and

leaving him on the floor in a blood-spattered room where he was

found dead. From all of the evidence and the circumstances

surrounding this violent encounter, the proof was sufficient to

permit the jury to conclude that the victim's heart failure,

induced by the extreme stress and trauma of such a violent

assault, was a directly foreseeable consequence of defendant's

conduct (see Matos, 83 NY2d at 511-512). 

Defendant's argument to the contrary disregards the

controlling law and blurs the distinction between the "cause of

death" and "manner of death." As the medical examiner testified,

the cause of death, based on the autopsy of the body, was

"Hypertensive Cardiovascular Disease," but the manner of death,

derived from the facts and circumstances surrounding the death,

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was listed on the report as "[u]ndetermined."3 The jury must

consider the evidence of the facts and circumstances of the

victim's death in determining causation and is not bound by an

"undetermined" classification in a report that is not informed by

the witnesses' trial testimony and corroborative evidence. We

conclude that the trial evidence adduced as to the manner of

death created a question of fact for the jury regarding

foreseeability, particularly given the violence of the encounter. 

Viewed in a light most favorable to the People, the evidence on

causation was sufficient to support defendant's felony murder

convictions.

B.

Defendant also argues that the evidence was

insufficient to support his convictions for burglary in the first

degree and robbery in the first degree because the only evidence

to support those convictions was Fatico's accomplice testimony. 

Pursuant to CPL 60.22 (1), "[a] defendant may not be convicted of

any offense upon the testimony of an accomplice unsupported by

3 Notably, both the County Law and the New York City Charter

provide medical examiners with the authority to conduct

additional investigation or examination "to determine the means

or manner of death" (County Law § 674 [3] [a]; see NY City

Charter § 557 [f] [3]). To the extent such additional

investigation was ever conducted by the medical examiner in this

case, the facts derived therefrom would not supplant the

admissible evidence at trial as to the facts and circumstances

surrounding the victim's death. The jury, of course, must find

the reasonable foreseeability of the death on that trial evidence

alone. 

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corroborative evidence tending to connect the defendant with the

commission of such offense." However, 

"'[t]he corroborative evidence need not show

the commission of the crime; it need not show

that defendant was connected with the

commission of the crime. It is enough if it

tends to connect the defendant with the

commission of the crime in such a way as may

reasonably satisfy the jury that the

accomplice is telling the truth'" (People v

Reome, 15 NY3d 188, 191-192 [2010], quoting

People v Dixon, 231 NY 111, 116 [1921]).

 

Here, the video clips depicting a man who physically resembled

defendant and the detailed phone records of all three accomplices

"'so harmonize[d] with the accomplice's narrative as to have a

tendency to furnish the necessary connection between defendant

and the crime'" (id. at 194, quoting Dixon, 231 NY at 116-117).

Defendant's remaining contentions regarding the

sufficiency of the evidence to support his convictions are

without merit.

III.

Finally, defendant argues that the trial court erred in

denying his motion to preclude further use of the DVD of video

clips culled from the building's surveillance system at trial. 

The authenticating witness, who maintained the surveillance

system, testified that during the computerized process of

compressing and archiving the digital video files, certain images

may overlap. However, he further testified that the process,

which he personally conducted, does not conjure up persons that

were not originally present in the camera shot. As such, the

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trial court did not abuse its discretion in concluding that the

image-overlap issue went to weight, but not admissibility, of the

video evidence (see People v Patterson, 93 NY2d 80, 84 [1999]). 

Accordingly, the order of the Appellate Division should

be modified in accordance with this opinion, the case remitted to

that Court for consideration of the facts, and, as so modified,

affirmed.

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People v Davis

No. 169 

RIVERA, J.(dissenting in part):

Defendant was convicted for the death of a 41-year-old,

well-developed male who was 6'1", weighed 270 pounds, and

suffered from hypertensive cardiovascular disease, on the theory

that the injuries suffered during a struggle with the defendant

precipitated the victim's death from heart disease. To establish

defendant's guilt for second degree felony murder, the People had

to prove beyond a reasonable doubt that in the course of

committing a robbery and burglary defendant caused the victim's

death (Penal Law § 125.25 [3]). Causation for criminal liability

requires both that the "culpable act was a 'sufficiently direct

cause' of the death" and that the "fatal result was reasonably

foreseeable" (People v Hernandez, 82 NY2d 309, 313-14 [1993],

quoting Matter of Anthony M., 63 NY2d 270, 280 [1984]). I

disagree with the majority that the People carried their burden

to establish that the death was a foreseeable consequence of

defendant's actions.

According to the trial evidence, during a struggle with

defendant, the victim suffered a broken jaw and nose, as well as

several lacerations to his face. Though there was a significant

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loss of blood, the victim did not suffer any internal trauma to

his head, neck, or torso, and the medical examiner who conducted

the autopsy characterized the injuries, either individually or

combined, as "not significant enough to cause or contribute to

death." The cause of death was identified as hypertensive

cardiovascular disease, of which obesity was a contributing

factor. The People submitted testimony from a medical examiner

who did not conduct the autopsy, who opined that the injuries did

not cause the victim's death but that the stress associated with

the injuries "given [the victim's] underlying heart disease led

to his death." In other words, the struggle-induced stress

combined with defendant's obesity and preexisting heart condition

led to the victim's death. 

Prior cases in which the Court determined that a

victim's death was foreseeable involved a defendant's direct

causatory action that put the victim at obvious risk of death --

conduct not present in defendant's case. For example, in

Hernandez, an armed defendant confronted a team of officers as he

tried to escape a failed robbery (82 NY2d at 312). When he

refused to surrender and moved towards the officers, gun drawn,

they opened fire and one officer was fatally shot in the head

(id.). Remarking on the codefendant's culpability for the

officer's death, the Court stated that "it [was] simply

implausible for defendants to claim that defendants could not

have foreseen a bullet going astray when [the defendant] provoked

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a gun battle outside a residential building in an urban area"

(id. at 319). In People v Matos (83 NY2d 509, 511 [1994]), a

police officer suffered fatal injuries after being trapped in a

rooftop airshaft while chasing the defendant as he tried to

escape capture from the scene of an attempted armed robbery. The

Court held it was "foreseeable that someone might fall while in

hot pursuit across urban roofs in the middle of the night" (id.

at 512). Also, in a case ostensibly about superceding events,

the Court concluded in People v Kibbe (35 NY2d 407, 413 [1974])

that defendants were liable for the victim's death. As the Court

detailed, the defendants had robbed the victim and threw him out

of a car onto the shoulder of a rural highway, leaving him alone

at night in near-zero degree weather with limited visibility

conditions, without his glasses, and with his pants down,

shoeless and his shirt rolled up around his chest (id. at 410-

11). Shortly after abandoning him on the road, the victim was

struck and killed by a truck (id.). The Court held the

defendants were liable for these "directly foreseeable

consequences of their actions" (id. at 413). 

In these cases, viewing the facts in context, an

obvious result of defendants' criminal behavior was to place the

victims at risk of death. In Hernandez, it was foreseeable that

defendant's act of confronting the officers with a loaded weapon

would lead to a gun fight, and in no way surprising that someone

might be killed in the cross fire. In Matos, it was foreseeable

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that the officer would die during a nighttime rooftop chase

initiated by defendant's attempted escape. Certainly, in Kibbe,

the victim's death was reasonably foreseeable when defendants

abandoned him at night on a highway in a physically vulnerable

state.*

Here, however, it is not foreseeable that a 41-year-old

who appears overweight but was sufficiently able to engage his

attacker would die as a result of the struggle where the injuries

from the assault were a broken jaw and nose, lacerations and

bruises. The autopsy report states that these injuries themselves

are not the type that would cause or contribute to death.

Accordingly, without the required foreseeability, defendant's

felony conviction should not stand.

For the reasons I have discussed, and because I agree

that defendant's other claims are without merit, I would affirm

the Appellate Division in its entirety.

*The Court has previously addressed causation in the felony

murder context of heart attacks in Anthony M. (63 NY2d at 281),

but that case is not dispositive here. The Court in Anthony M.

focused exclusively on whether the defendants' actions were a

contributing factor to the heart attack deaths such that the acts

were a sufficiently direct cause of death (id.; see also

Hernandez,82 NY2d at 314). The Court did not address

foreseeability. Regardless, Anthony M. and its companion case

are distinguishable because they involved elderly victims, ages

83 and 89 respectively, who died of heart attacks after

defendants' assaults (id. at 276-77). The facts there are not

comparable to a physical struggle wherein a 41-year-old victim

suffers a broken jaw and nose, and dies of heart disease.

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

Order modified in accordance with the opinion herein, case

remitted to the Appellate Division, Fourth Department, for

consideration of the facts and, as so modified, affirmed.

Opinion by Chief Judge DiFiore. Judges Pigott, Abdus-Salaam,

Stein, Fahey and Garcia concur. Judge Rivera dissents in part in

an opinion.

Decided November 21, 2016

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