People v. Bonilla

Lazer, J.

(dissenting). I agree with Justice Titone’s analysis of the reasons why the error in failing to define death to the jury has been preserved. I disagree with his conclusion that the manslaughter conviction should be reduced to assault in the second degree. There was ample proof that the defendant was responsible for the victim’s common-law death. Therefore, I would reverse and remit for a new trial.

From its beginning almost to the end, the case was tried on the People’s theory that defendant’s gunshot had inflicted brain death. At the onset, the People requested that a definition of death other than respiratory and heart function death be given, the defendant agreed and the court declared that it intended to instruct the jury that death is the irreversible cessation of all functions of the brain because, without such a charge, the jury would be in *440 a turmoil and “would not have sufficient knowledge as laymen * * * to decide what is death”. The opening statements centered on brain death, the People contending that the defendant’s shot placed the victim in a state of brain death while the defendant argued that the current medical standards for establishing brain death had not been met when the organ transplants were commenced.

The chief disagreement between the expert witnesses was whether the victim was brain dead when his organs were removed and whether the -proper tests had been performed to establish brain death. Nevertheless, the expert testimony provided a sufficient basis for the jury to find that the victim’s wound was mortal and that common-law death — cessation of heart beat and respiration — was inevitable within a brief time. Viewing the record of this trial which focused on brain death and concluded without death being defined to the jury, I remain unassured that the jury knew whether it was brain death or common-law death that was in issue. The distinction is important for more than semantic reasons because the court instructed the jury that it would be a defense to the homicide charge if the “secondary agency” — the organ transplants — were the sole cause of death. But if the jury believed that brain death was at issue, it could have found the defendant guilty of manslaughter without ever reaching the question of secondary agency. Since I am far from certain that the jury comprehended the undefined distinctions between brain death and common-law death, I conclude that the failure to define death requires reversal. How the charge error was preserved is cogently revealed in Justice Ti-tone’s opinion. The defendant certainly made it apparent that a definition of death was necessary and expressed the willingness to accept a charge that death occurs when the cardiac and respiratory functions cease.

Where I part company with Justice Titone is in his conclusion that the organ transplants relieved the defendant of homicidal responsibility. Since my position in this respect essentially comports with that of the majority, I will abjure a further recitation of the applicable authorities so ably reviewed in Justice Rubin’s opinion. Whether there can be any legal consequences to the persons who *441 took part in the transplant operation upon the instant victim, who had suffered an apparently mortal wound with common-law death imminent (see Public Health Law, art 43), is not relevant; the transplants did not relieve the original homicidal actor of criminal responsibility for the victim’s common-law death. If an act of malpractice by a physician treating a mortally injured victim will not relieve a criminal defendant of responsibility for the death (see People v Kane, 213 NY 260 ; cf. People v Stewart, 40 NY2d 692 ), I do not see why in this day and age a defendant who has inflicted imminent death upon another should be relieved of homicidal responsibility if the person in extremis becomes the subject of a transplant procedure. Reverting to traditional analysis, the defendant’s act clearly contributed to the victim’s death even though other acts may have aided in the result (see People v Cicchetti, 44 NY2d 803 ) and on this record it cannot be said that death was solely attributable to the secondary agency (see People v Stewart, supra; People v Kane, supra). It is sufficient that “the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused” (see People v Kibbe, 35 NY2d 407, 412 , citing 1 Wharton, Criminal Law Procedure, § 169). If foreseeability is a criterion, it is foreseeable that a person whose imminent death is inevitable may be the subject of organ transplants intended to rescue the lives of others. Commission of a homicidal act does not endow the actor with an immunity from visualizing a consequence that is apparent to the rest of society.

Accordingly, my vote is for reversal and a new tr^l.

Niehoff, J., concurs with Rubin, J., in a separate opinion; Gulotta, J., concurs in the opinion of Niehoff, J.; Titone, J. P., dissents insofar as he votes to reduce the conviction of manslaughter in the first degree to assault in the second degree and otherwise concurs to affirm the judgment, with an opinion; Lazer, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.

Judgment of the Supreme Court, Kings County, ren dered April 28, 1980, affirmed.