People v. XuHui Li

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December 19, 2014, convicting defendant, after a jury trial, 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, and sentencing him to an aggregate term of 10 to 20 years, unanimously affirmed.

Defendant was a physician specializing in pain management. In 2004, he opened a pain management clinic in Queens. According to the People, the clinic was nothing more than a “pill mill” catering to people who were hopelessly addicted to pain medicine, primarily opioids. The People’s evidence showed that, despite having been trained in the wide variety of methods for identifying legitimate pain and treating it, defendant engaged in only the most cursory attempts to confirm patients’ complaints, such as asking them where they had pain, and occasionally palpating a purportedly sore area or testing the range of motion of a limb. He rarely ordered diagnostic scans. Moreover, defendant, despite the plethora of options for treating pain, regularly prescribed opioids as a first resort, and not a last resort, which would have been the prudent course given the highly addictive nature of those drugs.

Further demonstrating the fact that defendant’s clinic was

Indeed, defendant’s prescription practices led to tragedy. Two of defendant’s patients, Joseph Haeg and Nicholas Rappold, died within days of their last visits to defendant’s clinic. Toxicological evidence revealed that Haeg’s body contained over 20 times what would be considered a therapeutic amount of oxycodone—a fatal dose—and a moderately high therapeutic amount of Xanax. Although Rappold was not found to have fatal levels of either oxycodone or Xanax in his system when he died, his death was determined to have been caused by the drugs’ having worked synergistically to depress his respiration. In connection with the deaths, defendant was charged with second degree manslaughter. He was also charged with first-degree reckless endangerment with respect to three other patients, and second-degree reckless endangerment with respect to four more patients. For all 19 patients at issue defendant was charged with criminal sale of prescriptions; an aggregate 180 counts of this charge were leveled. Finally, although not at issue on this appeal, defendant was charged with one count of first-degree scheme to defraud, two counts of third-degree grand larceny from Medicare and Blue Cross/Blue Shield; 11 counts of first-degree falsifying business records submitted to the Centers for Medicare and Medicaid Services; and 16 counts of first-degree offering a false document for filing with the New York State Department of Health’s Office of

Defendant argues that the manslaughter convictions should be reversed because, as a matter of law, the sale of a controlled substance can never support a homicide charge in the absence of express legislative authorization. He bases this position on a Second Department decision, People v Pinckney ( 38 AD2d 217 [2d Dept 1972], affd 32 NY2d 749 [1973]). In Pinckney, the defendant sold heroin, and provided the means to inject it, to the victim, who died ( 38 AD2d at 218 ). He was charged with, inter alia, manslaughter in the second degree and criminally negligent homicide (id.). Contrasting the sale of heroin with the sale of wood alcohol, which is known to be inherently deadly, the Court held that the defendant could not be held criminally responsible for the death, because “[although 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. The homicide cases involving a sale or use of an illegal drug or instrument for the purpose of causing an abortion were prosecutions . . . pursuant to express statutory provisions. There are no provisions contained in the present Penal Law which set forth that the illegal sale of a dangerous drug which results in death to the user thereof constitutes manslaughter or criminally negligent homicide” (id. at 219 [citations omitted]).

Defendant contends that there is no legal distinction between himself and the drug dealer in Pinckney, since, he claims, opioids are not even as dangerous as heroin and, in any event, he merely provided the pills, and was not present when Haeg and Rappold ingested them. He argues that, since the Penal Law, in the sections criminalizing sales of controlled substances, is silent on the consequences if a sale results in the buyer’s death, his prosecution for manslaughter is without any legal basis.

We disagree. Nothing in Pinckney suggests that one who provides a controlled substance, whether it be heroin by a street dealer, or opioids by a medical doctor, can never be indicted on a manslaughter charge. Indeed, in People v Cruciani ( 36 NY2d 304 [1975]), the Court of Appeals affirmed the second degree manslaughter conviction of the defendant, who injected the victim with heroin, because he knew she was already in a highly intoxicated state. The Cruciani Court distinguished Pinckney, because in the latter case there was not “any proof,

At bottom, all that was needed for the manslaughter charge to be sustained was for the People to satisfy its elements. That is, that defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that [death would] occur . . . The risk [being] of such nature and degree that disregard thereof constitute [d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]; People v Lora, 85 AD3d 487 , 491 [1st Dept 2011], appeal dismissed 18 NY3d 829 [2011]).

The question then becomes whether the People presented sufficient evidence to establish that defendant consciously disregarded the risk that Haeg and Rappold would die as a result of his prescribing practices. Trial evidence is legally sufficient to support a conviction if, viewed in the light most favorable to the People, it could lead a rational jury to find the defendant guilty beyond a reasonable doubt (see People v Danielson, 9 NY3d 342 , 349 [2007]). A jury’s verdict is supported by sufficient evidence if the evidence presented supports “any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury” (People v Bleakley, 69 NY2d 490 , 495 [1987]).

Defendant attacks the proof of his responsibility for Rap-pold’s death because there was no evidence that the oxycodone that was found in Rappold’s system came from defendant. Further, although there is no question that the Xanax found in Rappold’s system was prescribed by defendant days before his death, and that 55 pills were missing from the bottle, defendant asserts that he should not be held responsible for Rap-pold’s having consumed an amount of pills “monumentally and tragically beyond what had been prescribed by [defendant], as the Xanax was to be taken at only one pill (2 milligrams) three times a day, which was a common therapeutic dose (emphasis omitted).” With respect to Haeg, defendant argues that the evidence does not show that he should have anticipated that Haeg would abuse the drugs he prescribed him. For example, he states that, despite Haeg’s friends’ and relatives’ testimony that his addiction was obvious from his physical appearance, there is no proof that he himself was informed of this or noticed anything out of the ordinary about his patient.

Moreover, Gharibo testified that, based on Haeg’s profile and history, the prescriptions written for him by defendant on December 26, 2009 created a “very high” risk to Haeg of a wide spectrum of ill effects, which included “overdosing due to misusing [the] medication and dying from respiratory death.” Based on this testimony, it was reasonable for the jury to infer that defendant was using his prescriptions not to treat legitimate pain but to feed an addiction to opioids, and, with respect to Haeg, that he knew the patient would consume the medication in a manner consistent with a person who is taking it in such quantities to achieve and maintain a narcotic high, not for its therapeutic benefits, and that he consciously disregarded the possibility that, in taking the medication in such quantities, Haeg could die.

According to Gharibo, defendant also wrote medically unjustified prescriptions for Rappold, who appeared at defend

The People’s theory is that, regardless of who prescribed the oxycodone ingested by Rappold immediately before his death, the Xanax that was unquestionably prescribed by defendant was a contributing factor in his death and thus served as a sufficient legal basis for the manslaughter charge. Defendant counters that, absent direct proof that the drugs prescribed by him combined to cause the death, no causal link can be drawn between his actions and Rappold’s death. Defendant relies on Burrage v United States ( 571 US —, 134 S Ct 881 [2014]) in arguing that the People were required to establish a “but for” connection between the Xanax prescription and Rappold’s death, and that the court erred in not so instructing the jury. We reject this position. Burrage interpreted specific causation language employed by Congress in the federal Controlled Substance Act, which language is not included in New York’s manslaughter statute (Penal Law § 125.15). Moreover, the Court of Appeals, in People v Davis ( 28 NY3d 294 [2016]), which was decided after Burrage, reiterated that the causation element in a homicide case is satisfied when the People prove “(1)

We also affirm the convictions for criminal sale of a prescription for a controlled substance and for reckless endangerment. With respect to the former charge, the People had to prove that defendant “knowingly and unlawfully s[old] a prescription for a controlled substance” (Penal Law § 220.65), other than in good faith in the course of his professional practice. There is no adequate basis to overturn the jury’s finding that 170 out of the 180 counts of criminal sale were proved beyond a reasonable doubt. The jury’s determination with respect to the credibility of the People’s expert testimony on these counts is given great weight, and defendant’s general contentions regarding the improper nature of the prosecution and the proper nature of his usual prescription practices do not overcome the showing made by the People with respect to the medically unlawful prescriptions.

Regarding the reckless endangerment in the first degree convictions, there was ample evidence to support a finding that defendant’s prescription and treatment practices with respect to these patients created an imminent danger of an overdose that could have been life threatening, which thereby evinced depraved indifference to human life. Defendant also makes the procedural argument that all the reckless endangerment counts (the three first-degree counts and the four second-degree counts) were improper because the indictment did not specify particular office visits or occurrences of prescriptions, but rather simply listed a time period so extensive that it was virtually impossible for defendant to have adequately ascertained which of his actions, visits, treatments or prescriptions were alleged to have created a risk to each relevant patient.

We have considered and rejected defendant’s remaining arguments, including those addressed to the weight of the evidence and to the court’s charge.

Concur—Manzanet-Daniels, J.P., Mazzarelli, Webber and Oing, JJ.