People v. Bonilla (95 A.D.2d 396, 1983)

OPINION OF THE COURT

Rubin, J.

This appeal raises the question of whether a defendant who has inflicted a mortal wound on another person can escape a homicide conviction because of the acts of hospital doctors in removing the victim’s kidneys and spleen for transplant and thereafter disconnecting life support systems. In essence, defendant’s principal contention is that the People have not proven beyond a reasonable doubt that he “cause[d] the death” of the victim (Penal Law, § 125.00). Additionally, he claims that the trial court erred in not instructing the jury on the definition of death.

After considering all of the circumstances of this case, it is clear that the evidence adduced at trial was sufficient to support the jury verdict. The trial court’s charge was meticulous and exhaustive and allowed for a full range of possible verdicts. Key concepts of intent and causation were presented. It was not reversible error for the trial court to have refused to define death.

_

The underlying physical facts constituting the crimes charged are not in dispute. Defendant was acquainted with a small-time marihuana dealer named Orlando Miranda, also known as “Little Man”. The two became enemies and apparently had several arguments. Defendant felt that Miranda was deliberately harassing and embarrassing him in front of his cohorts. Finally, on the evening of February 6, 1979, defendant saw Miranda outside of the cleaning store where defendant was employed, at which time Miranda gave him “a bad look”. Prior to this, defendant had been drinking and had consumed somewhere between one and one and one-half quarts of rum with three other friends. Defendant borrowed a 32-caliber pistol from a friend, and went to the area where Miranda could normally be found. He located Miranda and kept him under observation for about two hours, waiting until he was alone. He then approached Miranda and attempted to buy some marihuana from him. An argument ensued and defendant pulled out the gun and fired at least twice at Miranda. One bullet entered the right earlobe, passed through the right side of the brain, bruising but not destroying the brainstem, and came to rest in the left rear portion of the brain. The other bullet appears to have entered the body through the right shoulder and exited the left chest near the breastbone.

The defendant fled the scene and shortly thereafter, at about 10:30 p.m., a police car arrived. A police officer immediately radioed for an ambulance, but when none appeared within a few minutes, he placed Miranda in his police car and rushed him to Brookdale Hospital. When the victim arrived at the hospital emergency room, he was comatose, but had some slight reaction to noxious stimuli. Within minutes his condition deteriorated. He became totally unresponsive and remained so thereafter. He was placed on a respirator and various drug therapies were undertaken without result. On the following day, February 7, he was totally areflexic — completely unresponsive to all stimuli. His respiration and blood pressure were artificially supported. Two electroencephalograms (EEGs) were reported to be “flat”. Dr. Meyer Rosenberg, chief of neurosurgery at the hospital, pronounced Miranda’s condition to be cerebral death. Shortly thereafter the victim’s mother signed a consent and Miranda’s kidneys and spleen were removed for donation.

Investigation by the police ultimately led to defendant and, in April of 1979, he was arrested. He confessed twice to the shooting, first to a detective, and then to an Assistant District Attorney, waiving his right to an attorney in both instances. He was indicted and charged with murder in the second degree and criminal possession of a weapon in the second degree.

At trial the evidence as to the actual cause of death was provided by the Brookdale Hospital report, the autopsy report and the testimony of three physicians. Dr. Rosenberg, the attending physician, and Dr. Milton Wald, the medical examiner, testified for the People and Dr. H. Richard Beresford testified for the defense. All three medical witnesses were highly qualified.

Dr. Rosenberg first saw Miranda on the morning of February 7, 1979, at around 9:00 a.m. Prior to examining him he had received a medical history. At the time of the examination Miranda was on a mechanical respirator. Dr. Rosenberg proceeded to subject him to a series of standard tests and found him to be totally areflexic, i.e., without reflex. Testimony revealed that these tests included: touching cotton to the eyeball to see if the eye closed; flashing light on the pupil to see if it would constrict; turning the head to one side to detect eye movement (doll’s eye test); and pinching the side of the neck to see if the eye would dilate to the painful stimulus. Miranda was completely immobile and unresponsive to light or to any other stimulus. The doctor also tested Miranda for spontaneous respiration by disconnecting the mechanical respirator for two or three minutes. Miranda was unable to breathe without the aid of the machine and it was reconnected.

At trial, the doctor stated that he did not perform another common test known as the colonie or ice water test whereby a physician introduces ice water into the ear canal and watches for eye movement in the direction of this uncomfortable stimulus. Based on his previous experience with head injuries such as Miranda’s, he considered the “constellation” of tests used sufficient. On the following day, February 8, 1979, Dr. Rosenberg went through some of the same tests once again, with identical results. By this time, he had also been notified of the results of two EEGs which confirmed his diagnosis. He accepted the oral report that they were flat though he did not personally evaluate the EEGs. After this final examination, Dr. Rosenberg pronounced Miranda “brain dead”. Dr. Rosenberg testified that he had seen other gunshot wounds of the type that Miranda had received and to his knowledge no one had ever survived a wound or trauma of this nature. He attributed the direct cause of death to the gunshot wound and its secondary effect on the brain. Beginning at about 9:25 p.m., Miranda’s kidneys and spleen were removed for transplant. Hospital records disclose that anesthesia was not used during the operation though the victim remained on the respirator.

Dr. Milton Wald, the medical examiner, testified that he performed the autopsy on Miranda on February 9, 1979. He detailed the locations of the bullet wounds, and noted the removal of the deceased’s kidneys. He stated, repeatedly and without qualification, on both direct and cross-examination, that Miranda’s death was solely attributable to the bullet wound to the skull and brain:

“Q Could you say specifically and unequivocally, doctor, that the death of Orlando Miranda was solely attributable to the gunshot wounds?

“A Yes, sir.

“Q You can say that?

“A Yes, sir.

“Q Unequivocally?

“A Yes.

“Q That’s based upon your examination or is that also based upon the determination of brain death as received by you from Brookdale Hospital?

“A Without the determination of brain death. Without that.

“Q And without the transplant?

“A Without the transplant.

“Q Death was caused solely by the —

“A Gunshot wound of head and brain.”

Dr. Wald described the sticky, soft texture of the victim’s brain as being consistent with brain death. However, he could not specify when brain death occurred nor could he prognosticate how long Miranda would have survived in a vegetative state or otherwise were it not for other intervening factors.

Dr. H. Richard Beresford, both a physician and a lawyer, qualified as an expert witness for the defense in the field of medicine and neurology. He, of course, did not examine Miranda but he had inspected the Brookdale Hospital records and the autopsy report. He elaborated on certain tests which he felt were essential to an examiner in order for him to make a finding of brain death, and expressed the opinion that the tests that had been administered did not meet current neurologie criteria. Dr. Beresford voiced doubt as to whether Miranda was actually “brain dead” when he was so pronounced. He did not, however, testify that Miranda was alive at that time or that the surgery or removal from the respirator was the cause of death. His judgment was based on his evaluation of the hospital records which did not specify all of the diagnostic tests performed by Dr. Rosenberg. Two unlisted tests (the doll’s eye test and the spontaneous respiration test), considered essential by Dr. Beresford, were actually performed.

Dr. Beresford admitted that there were varying criteria acceptable to the medical community for determination of brain death, with no single definitive procedure required. He disagreed with the method used by Dr. Rosenberg in testing for spontaneous respiration and with his evaluation of the two EEGs. Reading from the hospital record, he noted an entry concerning the first EEG stating that it was “normal”. Dr. Rosenberg had relied on an oral report that this same EEG was “flat”, indicating that there was no brain activity at that particular time. The second EEG exhibited “artefacts” which are signs of electrical activity. Dr. Beresford was not clear whether these artefacts could be attributed to a source other than the brain or if in fact this EEG was indeed “flat”. The doctor further stated that the EEG was a means of measuring higher level brain function, and not a test that would exclusively establish brain death. He opined that measurement of brainstem function could be achieved either through the doll’s eye response or the ice water test.

As indicated by the foregoing synopsis of Dr. Beresford’s testimony, a primary thrust of the defense strategy was predicated on brain death. We are, therefore, constrained under these circumstances to consider this proposed definition of death. However, the critical issue in this case is “causation”.

Until recent years the legal definition of death had evolved through the common law as a cardiorespiratory standard and was generally recognized as: “The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation etc.” (Black’s Law Dictionary [4th ed, 1968], p 488). The science of medicine has advanced to a point where traumas and illnesses which were certain to cause death a few years ago do not necessarily result in death at the present time. Of immense importance in this area has been the invention and development of so-called “life support systems”. Today most hospitals have equipment which can either substitute for, or stimulate and maintain, certain basic body functions which are necessary to sustain life. In most cases they are used until such time as corrective medical practices, such as surgery, or the natural recuperative powers of the human body itself, restore the individual to normal function. Of course, there are cases where the damage is so severe that neither artificial means nor natural recuperative powers can succeed and, as a result, basic life functions continue only so long as the artificial life support systems sustain them or, in some cases, death occurs in spite of the life support systems. These advances in medical technology sometimes blur the distinction between life and death (Matter of Eichner [Fox], 73 AD2d 431, 448, mod 52 NY2d 363). This has brought about a need for an expanded definition of “death”, going beyond the classical definition set forth above (see Biorck, When is Death?, 1968 Wis L Rev 484; see, also, Showalter, Determining Death: The Legal and Theological Aspects of Brain-Related Criteria, 27 Cath Lawyer 112).

The latest edition of Black’s Law Dictionary (5th ed, 1979) now defines death (p 360) as follows: “The cessation of life; permanent cessations of all vital functions and signs. Numerous states have enacted statutory definitions of death which include brain-related criteria.” Parenthetically, it should be stated that New York is not one of the States which has enacted such a statutory definition. Since 1975, bills have been introduced in the State Legislature to add a new section 4140-a to the Public Health Law, the latest being in February, 1983. Such proposed legislation has never been voted out of committee.

The latest edition of Black’s Law Dictionary also defines “brain death” as follows (p 170):

“Numerous states have enacted statutory definitions of death which include brain-related criteria. ‘A person shall be pronounced dead if it is determined by a physician that the person has suffered a total and irreversible cessation of brain function. There shall be independent confirmation of the death by another physician,’ Calif. Health & Safety Code, Section 7180 (1976).

“Characteristics of brain death consist of: (1) unreceptivity and unresponsiveness to externally applied stimuli and internal needs; (2) no spontaneous movements or breathing; (3) no reflex activity; and (4) a flat electroencephalograph reading after 24 hour period of observation. Com. v. Golston, Mass., 366 N.E.2d 744. An increasing number of states have adopted this so-called ‘Harvard’ definition of brain death, either by statute or court decision.” Actually all three medical witnesses in the case at bar appeared to be in general agreement with this definition and differed only as to the procedures and number of tests necessary to diagnose brain death.

To date, 27 States have enacted laws defining death (see President’s Comm Report, Appendix C, p 120; n 1, supra). The precursor was the Kansas statute, “An Act Relating to and Defining Death”, passed in 1970 (Kan Stats Ann, § 77-202). This seminal statute defines death as the cessation of circulatory and respiratory function or, in the event these functions are being artificially maintained, defines death as occurring with the total and irreversible cessation of brain function (see C apron and Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U of Pa L Rev 87, 108). Of great significance is the Uniform Determination of Death Act which has been disseminated by the July, 1981 report “Defining Death” (President’s Comm Report, op cit., p 119). The definition contained in that act has the support of both the American Bar Association and the American Medical Association. It states in relevant part that: “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards”. The simplicity of this dual definition is embodied in the most recent proposal to add a section 4140-a to the New York Public Health Law (see n 5, supra). It recognizes that death occurs when the brain ceases to function, notwithstanding the fact that vital organs continue to be artificially sustained. If passed, a statute embodying this definition would help to alleviate the legal quandary that now exists and eliminate judicial second guessing. At present, it is conceivable that a victim such as Miranda could be pronounced brain dead in a State with a statutory definition of death while considered alive in another State simply based on the fact that his cardiorespiratory functions continue under the aegis of a machine.

Such a definition and knowledge of the time of death as defined by the Legislature is essential in those situations where organ transplants are to be performed (Note, Medical Jurisprudence — Determining the Time of Death of the Heart Transplant Donor, 51 NC L Rev 172). Success of a transplant is maximized if the organ is removed as soon after death as possible. This prevents deterioration and assures the organ’s prime condition for the preservation of another life (see Organ Transplant — Test for Death of Donor, Ann., 76 ALR3d 913; Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002). It is for this reason that artificial means are used to maintain the donor’s “traditional life-signaling functions” (Ann., 76 ALR3d 913, 914) even after pronouncement of brain death, though this produces the anomalous result of a dead brain coexisting with live organs. However, prolonged sustenance of a brain-dead individual will destroy the viability of any of his organs (Note, Survey of the Legal Aspects of Organ Transplantation, 50 Chi-Kent L Rev 510).

The fact that respiration and heartbeat continue, albeit through mechanical means, creates a dilemma for the physician who is to perform organ removal surgery and then disconnect the brain-dead patient from supportive equipment. Strict adherence to the traditional definition of death could squarely place hospitals and physicians in the path of tort and criminal liability. It was to prevent this result and thereby encourage anatomical gifts that our State adopted the Uniform Anatomical Gifts Act (Public Health Law, art 43). That act, however, does not define death or the time at which it occurs. This has had a “chilling” effect on transplant surgery. In an effort to implement the purposes of the act, the New York City Health and Hospitals Corporation petitioned the New York Supreme Court for a declaratory judgment as to the legislative intent in the use of the word “death”. The court ruled that it should be construed in accordance with generally accepted medical standards which now encompass a neurologically oriented concept of death (Matter of New York City Health & Hosps. Corp. v Sulsona, supra).

The stringent criteria that have been promulgated to justify the diagnosis of brain death under laws of this nature were first used in 1968 by the Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death (McCabe, A Definition of Irreversible Coma, 205 J Amer Med Assn 337; see Matter of Bowman, 94 Wn 2d 407). They seek to evaluate both higher brain function as well as lower brainstem function and are the criteria that have been included in the Black’s Law Dictionary (5th ed) definition of brain death. It should be noted that the criterion of a flat EEC is not mandatory but is considered confirmatory. There must be permanent destruction of the entire brain evidenced by reproduction of these criteria after a passage of 24 hours. If drugs and hypothermia can be ruled out as a cause of the persistent coma and the patient’s status persists, brain death has occurred (Hirsh, Brain Death: Medico-Legal Fact, or Fiction? 3 N Ky State L F 16; Comment, The Criteria for Determining Death in Vital Organ Transplants — A Medico-Legal Dilemma, 38 Mo L Rev 220; Victor, Brain Death: An Overview, 1981 Med Trial Technique Q 37, 45; see Matter of Mora, 107 Misc 2d 290). Though this determination is not simple, and new criteria have arisen which are not universally recognized or applied (Friloux, Death, When Does It Occur?, 27 Baylor L Rev 10,11; Compton, Telling the Time of Human Death by Statute: An Essential and Progressive Trend, 31 Wash and Lee L Rev 521, 522;. lc Gordy-Gray, Attorneys’ Textbook of Medicine, pars 29A.02, 29A.10), the sine qua non of a determination of brain death, whatever the protocol used, appears to be careful clinical assessment by the attending physician accompanied by the identification of the cause of the damage to the brain (President’s Comm Report, op cit., p 27).

Brain death as just described must be distinguished from the persistent vegetative state exhibited in the widely publicized Karen Ann Quinlan case (Matter of Quinlan, 137 N J Super 227, mod 70 NJ 10, cert den sub nom. Garger v New Jersey, 429 US 922). The issue there focused on whether life support systems could be removed even though the brain was not irreversibly and totally destroyed. In New York, a similar situation was recently addressed in the case of Matter of Eichner (Fox) (102 Misc 2d 184, mod 73 AD2d 431, mod 52 NY2d 363, supra). In our court, the very scholarly and all encompassing opinion by Presiding Justice Mollen established a set of guidelines, later modified, which enables parties with standing to remove life supports from patients who are terminally ill, in a perpetual coma, and lack cognitive brain functions associated with the higher level of brain activity. These individuals possess some primitive form of reflex activity of the brainstem. Though lacking the sapient functions of thinking, feeling, sensing, and understanding, they nonetheless can be maintained in a vegetative state independently or with the assistance of mechanical support.

The defendant herein seeks to capitalize on the enigma of death, brain death, and their “definition”. Prior to the commencement of the trial, the prosecutor and defense counsel had discussions with the court concerning a legal definition of death and the record indicates that considerable research was done on the -question. At that time the court initially indicated that it would give the jury a somewhat different definition of death than the classic cessation of respiration and heart function, and that it intended to instruct the jury that: “death is the irreversible cessation of all functions of the brain”.

The prosecutor and defense counsel indicated agreement with that definition. The court, however, also recognized that perhaps it was being premature and chose to “hold off” on any decision as to that instruction. During the trial, the jury was told that unlike some States, New York has no legal definition of death and when it occurs. Later, at the conclusion of testimony, Justice Kooper properly refused defendant’s request to charge a brain death definition.

This court has previously declared that postulation of brain death criteria for the determination of death “has not as yet been accepted as legally conclusive of the issue in this State” (Matter of Eichner [Fox], 73 AD2d 431, 449, mod 52 NY2d 363, supra). While it is primarily the Legislature’s prerogative to make substantive changes in the law, based on the facts sub judice it is unnecessary to usurp the legislative function in view of settled law in this State on criminal causation. In the absence of any statutory directive, and with the knowledge that the New York Legislature has been unable to reach a consensus on this controversial issue, we are not inclined to select from the many definitions of sister States.

The issue of whether to charge a judicially formulated definition of death, absent a statutory definition, has been confronted in other jurisdictions. In Cranmore v State (85 Wis 2d 722), the court declined to instruct the jury on what constitutes death and when it occurs. On review, it was found not to be reversible error. Wisconsin, like New York, was awaiting a legislative determination of an acceptable definition. As in the case at bar, the possibility existed under the facts in Cranmore that the Harvard criteria had not been fully complied with. There, however, no expert medical witness testified for the defense addressing the issue of brain death. The appeals court said (p 774): “We do not choose to define death, nor do we believe that the trial court was required to do so. We need only determine whether the jury could reasonably be convinced from the evidence which it had a right to believe and accept as true that the defendants were responsible for the death of [the victim.]”

The Massachusetts trial court in Commonwealth v Golston (373 Mass 249, cert den 434 US 1039), specifically charged a brain death definition. Significantly, the appeals court in accepting the definition said (p 257): “[I]f the issue of ‘brain death’ had not been submitted to the jury, the same evidence would have been considered on the issue whether the doctor’s conduct in disconnecting the respirator was an independent supervening cause of death. The outcome would have been the same.”

It was therefore decided that error, if any, in submitting this instruction was harmless beyond a reasonable doubt and the Judge’s charge was not an ex post facto change in the law or an invasion of the Legislature’s province (cf. Henderson v Kibbe, 431 US 145).

By judicial fiat, the Supreme Court of Colorado in Lovato v District Ct. (198 Col 419), adopted a brain death definition to supplement traditional medical standards. It asserted (p 432): “We do not, however, believe that in the absence of legislative action we are precluded from facing and resolving the legal issue of whether irretrievable loss of brain function can be used as a means of detecting the condition of death. Under the circumstances of this case we are not only entitled to resolve the question, but have a duty to do so. To act otherwise would be to close our eyes to the scientific and medical advances made world wide in the past two or three decades.” An instruction on brain death derived from Black’s Law Dictionary (5th ed) was charged in an Indiana case, Swafford v State (_ Ind _, _, 421 NE2d 596, 598), and no error was found. Upon review the court remarked that it too would not close its eyes to change and disregard reality. Therefore, the disposition of the case was not controlled by the traditional definition of death (see Matter of Bowman, 94 Wn 2d 407, supra).

On appeal here the defendant addresses the issue of his culpability under both the common-law and brain death definitions. If this court subscribes solely to the traditional definition whereby cessation of heartbeat and respiration are tantamount to death, then the defendant asserts that Miranda did not die until his kidneys and the respirator were removed by the independent intervening acts of the hospital physicians. If, however, death is no longer solely synonymous with these observable phenomena but also rests upon a finding of brain death, defendant alternately asserts that the criteria were not met by the attending physician, Dr. Rosenberg. Therefore, the defendant contends that, by any definition, someone else “caused” Miranda’s death.

Although in every homicide trial, by statute, it is necessary that the People prove beyond a reasonable doubt that the defendant “cause[d] the death of a person” (Penal Law, § 125.00), New York has no concomitant statutory provision to guide a court in the determination of the effect of the intervening act of a hospital staff upon the defendant’s criminal liability (People v Stewart, 40 NY2d 692, 696; People v Kibbe, 35 NY2d 407, 412). The issue of whether the bullet wound to the brain was a proximate cause of Miranda’s death must be a sui generis determination based on the facts in this particular case. The use here of life sustaining equipment merely adds a variation on the theme of criminal causation but does hot alter existing law. Accordingly, a statute defining death would not aid the defendant in a case such as this (see State v Holsclaw, 42 NC App 696).

Criminal liability for homicide requires that the defendant’s actions be a sufficiently direct cause of death (People v Stewart, supra, p 697; People v Kibbe, supra, p 413), but direct does not mean immediate or unaided (Cox v People, 80 NY 500; People v Brengard, 265 NY 100). It is enough that defendant’s conduct forged a link in a chain of events which brought about the death (People v Stewart, supra, p 697). Intervention of a secondary agency constitutes a defense only if the death is solely attributable to it (People v Stewart, supra; People v Kibbe, supra).

Regardless of which definition of death is followed, defendant’s actions were dangerous to life and were a substantial and sufficiently direct factor in the chain. He set in motion the chain of events which ultimately resulted in the victim’s death (People v Stewart, supra, p 696; People v Kibbe, supra, p 412). It cannot be said that there was an obscure or merely probable connection between the assault and Miranda’s demise (People v Brengard, supra, p 108; People v Stewart, supra, p 697). The bullet wound to the brain was the proximate cause of death and the homicide was properly attributed to the defendant.

The organ removal was not performed to treat or remedy the victim’s injuries. Furthermore, this is not an instance “where the death is solely attributable to the secondary agency, and not at all induced by the primary one” (People v Kane, 213 NY 260, 270). The prognosis for Miranda’s survival, as expressed by all three testifying experts, was very unfavorable. Organ removal would not have been initiated but for the mortal wound. This case is distinguishable from the Stewart case (40 NY2d 692, supra) on which the defense heavily relies. In Stewart, operating surgeons performed unrelated surgical repair on a hernia immediately after attending to a stab wound in the victim’s abdomen. One month following surgery the victim died of cardiac arrest. Testimony indicated that probably he would have survived the operation for the stab wound if the other procedure had not been performed. In addition, there was also evidence that the anesthesiologist may have been negligent in failing to oxygenate the victim and this alone could have caused the fatal result. Therefore, the defendant’s actions were not a sufficiently direct cause of death (People v Kibbe, 35 NY2d 407, supra) and his conviction for manslaughter in the first degree was reduced to assault in the first degree (cf. People v Warner-Lambert Co., 51 NY2d 295, 307).

Unlike the stab wound in Stewart (supra), the bullet wound to Miranda’s brain was operative as the cause of death (accord People v Roberts, 73 AD2d 954; People v Lozano, 107 Misc 2d 345). Therefore, even if Miranda’s doctors were hasty or erroneous in their diagnosis of brain death, and even if they were negligent in disconnecting the life support systems, their intervention would not be a supervening act relieving the defendant from liability (People v Kane, supra, p 262). The defendant will be held accountable “although other factors, entering after the injury, have contributed to the fatal result” (People v Stewart, supra, p 697; cf. People v Cicchetti, 44 NY2d 803, 804). He is responsible in law and must answer for the consequences of his actions (Ryu, Causation in Criminal Law, 106 U of Pa L Rev 773, 783).

While it is true that Miranda was an ideal source for organ donation because of his young age and otherwise good health, and that speed was essential to the outcome of a successful transplant, there is no indication, as the defense posited in its summation, that untoward motivation existed to hasten the brain death determination before it was warranted. The defendant’s argument cannot be accepted that one who acts in good faith, and negligently or by error of judgment shuts off life support machinery, or removes essential organs, is responsible for death instead of the culprit who acts of his own volition and inflicts a massive traumatic wound to the brain with a deadly weapon.

Defendant’s identical defense strategy has been raised in other jurisdictions in cases with facts similar to those that are before us. The courts therein have all reached a similar result. The Arizona Supreme Court in State v Fierro (124 Ariz 182, 185) held that “removal of life support systems did not change nor alter the natural progression of the victim’s physical condition from the gunshot wounds in the head to his resulting death”, nor was it “ ‘indispensible to a conviction that wounds be fatal and the direct cause of death’ ” (p 184). It was “ ‘sufficient that they cause death indirectly through a chain of natural effects’ ” (pp 184-185). There, too, the gunshot wounds were found to be the proximate cause of death though there was a removal of life support systems. The court also noted that a statutory definition of death was not necessary for resolution of the case.

In State v Shaffer (223 Kan 244), an expert testified, as did Dr. Beresford, that more tests should have been performed before the pronouncement of death. The doctors determined the victim was brain dead and removed one of his kidneys for transplant and then turned off the respirator. Nevertheless, the defendant was found guilty. The court stated that (p 250) “[w]here a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim’s death was contributed to or caused by the negligence of the attending physicians”. The courts uniformly appear to hold that intervening medical error is not a defense to exculpate one who has inflicted a mortal wound to another (People v Vanderford, 77 Mich App 370; People v Olson, 60 Ill App 3d 535; Cranmore v State, 85 Wis 2d 722, supra). Of course, the “acts of the defendant must be a real cause, a cause without which the decedent’s death would not have occurred” (State v Holsclaw, 42 NC App 696, 699, supra) whether they “contribute either mediately or immediately to the death” (Swafford v State, _ Ind _, _, 421 NE2d 596, 602, supra). Therefore it becomes immaterial to defendant’s guilt whether death is pronounced before or after the life support system is disconnected (People v Vanderford, supra).

Finally, we consider the learned Trial Justice’s very thorough instructions to the jury. The charge included six possible crimes and covered the many permutations of intent, causation, recklessness, effect of intoxication and intervention of a secondary agency. Also before the jury was the credibility, persuasiveness and conflicting clinical opinions of the three experts, and various medical protocols. Nonetheless, it found the defendant guilty of manslaughter in the first degree in that he intended serious harm and caused death; and, in addition, it found him guilty of criminal possession of a weapon in the second degree.

The finding by the trier of fact against the defendant now entitles the prosecution to the most favorable view of the evidence. This includes the indulgence in all permissible inferences in its favor (People v Benzinger, 36 NY2d 29, 32; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376). It is also well settled that a reviewing court will not supplant the determination of the jury where the verdict is supported by the weight of the evidence (People v O’Brien, 48 AD2d 446). It cannot be said as a matter of law that the jury’s finding is wrong or that failure to charge a definition of death is error when a jury charge is as thorough and detailed as that made in this case.

Accordingly, the judgment should be affirmed.

. “The brain has three general anatomic divisions: the cerebrum, with its outer shell called the cortex; the cerebellum; and the brainstem composed of the midbrain, the pons, and the medulla oblongata *** Traditionally, the cerebrum has been referred to as the ‘higher brain’ because it has primary control of consciousness, thought, memory and feeling. The brainstem has been called the ‘lower brain’, since it controls spontaneous, vegetative functions such as swallowing, yawning and sleep-wake cycles” (President’s Comm for Study of Ethical Problems in Medicine and Biomédical and Behavioral Research, Defining Death [hereinafter President’s Comm Report], US Supt Docs, No. Pr 40.8; ET 3/D34, p 15). The brainstem also controls respiration.

. Dr. Beresford, an expert witness called by defendant, defined an electroencephalogram as a “brain wave test. It’s — the way the test is performed is to place electrodes on the scalp of the head. These electrodes are then attached to a machine which has a series of needles on it which contain ink. If there is electrical activity that is being generated by brain cells, the electrodes on the head will pick up this activity. It will then be transmitted down, down into the series of little pencils, basically, which print a line on a paper. So, in other words, the electrical activity in the brain is translated into a line on a recording paper, like the electrocardiogram”.

. "[A] flat or isoelectric electroencephalogram (EEG) denotes nonexistent brain activity, or brain death.” (Hirsh, Brain Death: Medico-Legal Fact, or Fiction? 3 N Ky State L F 16,19; see, also, 1c Gordy-Gray, Attorneys’ Textbook of Medicine, par 29A.02.)

. A serious dispute exits in the medical community concerning the effectiveness of the EEG in diagnosing lack of brain activity and the weight to be given to a “flat” EEG. (See Comment, The Criteria for Determining Death in Vital Organ Transplants — A Medico-Legal Dilemma, 38 Mo L Rev 220, 227; Hirsh, Brain Death: Medico-Legal Fact, or Fiction? 3 N Ky State L F 16.)

. 1975 S 6243 A 7860

1976 S 6243 A 7860

S 10759 A 12248

1977 S 6027 A 4488

1978 S 6027 A 4488

1979 A 1607

A 7104

1980 A 9004

A 7104

1982 S 9444 A 11660

1983 A 3551

. Cf. Matter of Eichner (Fox) (73 AD2d 431, 453, mod 52 NY2d 363), where this court, while establishing criteria to be met in order to be able to disconnect life support equipment from those patients in a vegetative state, said: “We note that there are no precedents in this State which militate against a judicial resolution of this problem. There is no body of stare decisis; thus, the ‘continuity of law’ will not be disrupted. To the extent that the decisions of sister States provide guidance, no obstacle to judicial action is presented (Matter of Quinlan, 70 NJ 10, supra; Superintendent of Belchertown State School v Saikewicz, 370 NE2d 417, supra).”

. Even the defense expert, Dr. Beresford, was of the opinion that there had been very little chance that Miranda would recover:

“Q * * * Now, let me ask you this question. Doctor, based on your examination of Orlando Miranda’s record, the hospital record, based on your reading of the EEG, based on your reading of the autopsy report and everything else you did, what would be your prognosis for Orlando Miranda based upon the injuries that he received?

“A That it’s highly likely he would have died, depends — within hours, at most, a few days after the time the kidney transplant was performed. Say it hadn’t been performed and he was kept on the respirator and given the best care possible, he would have, I think, probably lived to — hours hours to days. There is an extremely remote chance he could have survived in a vegetative state, but I think that’s remote.”

. Justice Kooper’s charge on the issue of causation favorably compares with the charge in People v Kane (213 NY 260, 269-270). Moreover, it included the most recent principles of criminal causation enunciated by the New York Court of Appeals.

Niehoff, J.

(concurring). Although I am in total agreement with the end result reached by Justice Rubin in his exceptionally thorough and scholarly opinion, namely, that the defendant’s conviction of manslaughter in the first degree and criminal possession of a weapon in the second degree should be affirmed, I arrive at such conclusion by means of a somewhat different line of reasoning. Whereas Justice Rubin appears to be of the view that no definition of death was necessary in the charge to the jury, and that there is no need for this court to discuss the Trial Judge’s unwillingness to define the term for the jury, my belief is that under the circumstances of this case a definition of death, as accepted by the common law, was called for, and that it would have been preferable to impart it. Nevertheless, the Trial Judge’s refusal to give that definition, as such, does not require a reversal because the charge was so skillfully structured that it made clear to the jury that by death the court meant what is commonly understood as death, and that which the common law acknowledges to be death, viz., cessation of respiration and heartbeat. As Black’s Law Dictionary (5th ed, p 360) states, death is “[t]he cessation of life; permanent cessations of all vital functions and signs”.

In People v Kane (213 NY 260) the Court of Appeals laid down the rule for determining a defendant’s responsibility for homicide where the defendant has feloniously assaulted someone and there are intervening medical acts before death actually occurs. There, the court wrote (p 270): “If a felonious assault is operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment does not relieve the assailant from liability for the homicide. It is only where the death is solely attributable to the secondary agency, and not at all induced by the primary one, that its intervention constitutes a defense.”

More recently, in People v Stewart (40 NY2d 692, 697), the Court of Appeals restated the rule as follows:

“One accused of homicide, of course, cannot be convicted unless it is shown that he ‘cause[d] the death of a person’ (Penal Law, § 125.00). No matter what degree of homicide is charged this is always an essential element which the People must prove beyond a reasonable doubt (People v Brengard, 265 NY 100, 108). This means that the prosecutor must, at least, prove that the defendant’s conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death (see, e.g., Perkins, Criminal Law, 687). But something more is required before his conduct will be recognized as a legal cause of death warranting criminal sanctions. The requirement here is that ‘the defendant’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability’ (People v Kibbe, supra [35 NY2d 407], at p 413). Thus an ‘obscure or merely probable connection between an assault and death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide’ (People v Brengard, supra, p 108).

“We have held that ‘direct’ does not mean ‘immediate’. The defendant may be held to have caused the death even though it does not immediately follow the injury (see, e.g., Cox v People, 80 NY 500; People v Brengard, supra). Neither does ‘direct’ mean ‘unaided’ for the defendant will be held liable for the death although other factors, entering after the injury, have contributed to the fatal result. Thus if ‘felonious assault is operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment does not relieve the assailant from liability for homicide’ (People v Kane, 213 NY 260, 270). But if‘the death is solely attributable to the secondary agency, and not at all induced by the primary one * * * its intervention constitutes a defense’ (Kane, supra, at p 270)”.

In this case the Trial Judge faithfully followed the Kane-Stewart standard in charging the jury, and the members of the jury had sufficient evidence before them to conclude that the Kané-Stewart test for homicide responsibility had been met.

That is, the record contains evidence sufficient to have warranted a factual finding by the jury to the effect that the bullet which the defendant fired into the brain of “Little Man” Miranda was a “sufficiently direct cause” of Miranda’s ensuing death. Phrased otherwise, the evidence justified the jury verdict that the defendant was criminally responsible for the death of his victim because the gunshot wound to the head was a mortal one, i.e., one which forged a link in the chain of causes which actually brought about Miranda’s death. Although the victim’s kidneys and spleen were removed while he was still “alive”, the jury had the right to find that the removal of those organs came about only after there was ample evidence to support the conclusion that the bullet wound would inevitably produce death.

At the trial the defendant was claiming that the death of the victim was caused by the removal of his kidneys and spleen. While it may be argued that the kidney-spleen removal surgery was an agency which contributed to changing the time of Miranda’s death (i.e., advanced it somewhat) it cannot be said on the record before us that the jury erred in concluding that the operation was not an independent causative factor of the death, or, in concluding that death was inevitable from the bullet.

The evidence with regard to “brain death” that was introduced by both sides was relevant in that it had a bearing on the nature of the wound inflicted by the defendant, i.e., mortal or otherwise. The prosecution sought to show that the wound was a grievous one — one which produced the irreversible cessation of all functions of the brain. On the other hand, the defendant hoped to show that it did not have that effect. However that may be, the proof of brain death was not determinative on the question of defendant’s culpability for the death of the gunshot victim. Rather, the thrust of the proof was directed towards the defendant’s claim that death was caused not by the bullet wound in Miranda’s head but by an independent intervening agency. As will be seen during the discussion of the trial court’s charge which follows herein, the ultimate issue in this case was not whether Miranda suffered brain death before the nephrectomy. Rather, it was whether the-People had established beyond a reasonable doubt that the shooting of Miranda by the defendant was a cause of Miranda’s death as the word death is commonly and traditionally understood, namely, the cessation of respiration and heartbeat. Stated differently, the issue which was tried and the issue which was submitted to the jury was whether it was the bullet lodged in Miranda’s brain which caused the death (as commonly understood) or whether the death was solely attributable to a “ ‘secondary agency, and not at all induced by the primary one’ ” (People v Stewart, supra, p 697).

On the present appeal, the defendant maintains that the Trial Judge committed reversible error in her charge to the jury when she refused to instruct the jury on the definition of death. In essence, the defendant contends that the definition of death was a material legal principle applicable to this case which was crucial to the jury’s determination and that the court’s failure to so charge deprived him of due process of law as a consequence of which his manslaughter conviction must be set aside.

CPL 300.10 (subd 2) requires a court in its charge to “state the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts”. In my view, the Trial Judge’s charge complied with the mandates of that section.

It must not be forgotten that throughout the trial there was really no doubt that the defendant shot Miranda and that Miranda died a short time later at Brookdale Hospital. Thus, the only real issue for the jury’s determination was whether the bullet which lodged in Miranda’s brain was a cause of his death.

On appeal, the defendant argues that the trial court should have instructed the jury that death occurs when respiration and heartbeat cease, i.e., the common-law definition of death. This argument is made notwithstanding the fact that defense counsel specifically requested the court to charge a definition of brain death — not a definition of common-law death.

However that may be, I am satisfied that a review of the court’s charge against the background of this case compels the conclusion that there is no substance to defendant’s argument that he was denied due process because the court failed to define death to the jury in terms of cessation of respiration and heartbeat.

In his opening statement defense counsel stated to the jury: “I submit to you, based on the law that the Judge will give you, that though the gunshot wound took him to the hospital, there was an independent intervening factor, the action of the hospital, the people in the hospital, their preoccupation to get the kidneys out of this 19 year old which actually caused the death”.

At the close of the People’s case defense counsel moved for a trial order of dismissal on the grounds that (1) “we have an intervening factor. The intervening factor being the removal of the deceased’s kidneys and spleen for transplantation”; and (2) because the People failed to meet their burden of proof “that the specific act of the defendant was the intentional and the direct and immediate cause of the death of the deceased, they have failed to sustain the burden of proof sufficient to charge the defendant with any charge of homicide”.

The court denied the motion because Dr. Wald, the medical examiner, “was unequivocal and positive in his statement as to the cause of death, that it was not due to taking the defendant [sic] off the respirator, it was not the transplantation of the kidneys, and that he determined his results from the autopsy and not from information received at the hospital”.

Following the completion of an extensive precharge conference, defense counsel expressed his general satisfaction with the proposed charge. He indicated that the only problem he had with it was that he was going to ask for a charge on the definition of death, i.e., “I am going to ask you to charge the latest standard, which I gave you: That brain death is defined as the irreversible cessation of all functions of the brain.” The court declined to charge in that manner noting that “we have no law in New York that defines death” and that “if the definition of death is to become irreversible cessation of brain function, the change should be accomplished explicitly through an appropriate statute”. After further debate, the Judge stated: “My decision at this point is not to define death. I have read you five different definitions from God knows how many states. We don’t have a definition here, and I am not going to select one or arbitrarily decide which should be used. I don’t even think its a responsibility of mine to do as a Judge”.

In my view, the Trial Judge’s deliberate, informed decision not to charge the requested definition of brain death was correct. No such definition is recognized in this State and if such a definition is to be adopted it should be by means of legislative enactment.

Having concluded that the court did not err in refusing to charge a definition of brain death, I now turn to the question of whether the court’s charge made adequate provision for the definition of death as it is recognized in New York State, i.e., the common-law definition of death. If that definition of death was necessary in order for the jury to arrive at a proper verdict and if the charge failed to apprise the jury, expressly or impliedly, of the New York standard, then the charge must be construed as erroneous and further consideration will be mandated to determine if the error was harmless. If, on the other hand, the common-law definition of death was not required, or the court’s charge made the jury sufficiently aware of New York’s common-law definition of death, then the charge was error free in that regard.

Inasmuch as the jury heard testimony about “brain death” and its definition from witnesses on both sides, it is my view that to eliminate the possibility that the jury would convict the defendant of homicide solely on the basis of the evidence that he had caused the “brain death” of Miranda, it would have been preferable in this case for the court to have given the jury the traditional definition of death, thereby making it crystal clear for the jury that defendant could be guilty of homicide only if his acts caused the cessation of Miranda’s respiration and heartbeat. However, as noted at the opening of this opinion, I am satisfied that while the court did not expressly give a definition of death, as such, the court so carefully fashioned the charge that it was made manifest to the jury that by death the court meant that which is commonly understood as death, namely, cessation of respiration and heartbeat. That is, the charge thoroughly covered the issues involved and enabled the jury to render a fair and just verdict notwithstanding that an explicit definition of death was not given.

After reading the contents of the indictment, the Trial Judge charged the jury as follows:

“The term homicide means conduct which causes the death of a person under circumstances constituting murder in the second degree, manslaughter in the first degree and manslaughter in the second degree.

“When referring to the victim of a homicide, the term person means a human being who has been born and is alive. You cannot commit a homicide upon a dead person tfc

tfc

“You will note that our law requires the defendant to have had the specific intent to cause the death of Orlando Miranda before you may convict him * * *

“Thus, you must determine whether the prosecution has convinced you beyond a reasonable doubt that the defendant, in fact, intended to cause the death of Orlando Miranda. According to the law, a person intends to cause the death of another person when his conscious aim or objective is to cause the death of that person * * *

“It is the People’s position in this case that the defendant shot Orlando Miranda with the intent to cause his death and, in fact, did cause his death.

“The defendant, by his plea of not guilty, contends that he did not shoot Mr. Miranda. However, even if you find that the defendant did shoot Mr. Miranda, the defendant claims that he did not cause Miranda’s death, but that Miranda’s death was caused by the acts of the doctors at Brookdale Hospital Medical Center in removing Mr. Miranda’s kidneys and taking him off the life support systems, acts which he says were unnecessary for the treatment of the head wound.

“I remind you that one accused of homicide cannot be convicted unless it is shown that he caused the death of the deceased. No matter what degree of homicide is charged this is always an essential element which the People must prove beyond a reasonable doubt. This means that the People must, at least, prove that the defendant’s conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death.

“But something more is required before his conduct will be recognized as a legal cause of death warranting criminal sanctions. The requirement here is that the defendant’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability. Thus, an obscure or merely probable connection between the shooting and the death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide.

“Now, direct does not mean immediate. The defendant may be held to have caused the death even though death did not immediately follow the injury. Neither does direct mean unaided for the defendant to be held liable for the death although other factors, entering after the injury, have contributed to the fatal result. Thus, if the wounding of the deceased was operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment, if any, would not relieve the perpetrator from liability for the homicide. But if the death is solely attributable to the secondary agency, which the defendant alleges the kidney transplant was, and not at all induced by the primary one, the bullet in the head, its intervention constitutes a defense to murder in the second degree, manslaughter in the first degree and manslaughter in the second degree.

“1 remind you that one accused of homicide cannot be convicted unless it is shown that he caused the death of the deceased. Thus, the same law which I explained to you regarding murder in the second degree and manslaughter in the first degree concerning causation of death obtains regarding this crime — manslaughter in the second degree” (emphasis supplied).

After listening to counsel’s exceptions the court continued its charge to the jury as follows: “In case I did not make it clear, the lesser included non-homicide counts, attempted murder, assault in the first degree and assault in the second degree only become operative if you believe that the death of Orlando Miranda was caused by the doctors in removing the kidneys of the deceased and disconnecting his life sup port system. It is the People’s contention that the death was caused by the defendant’s acts” (emphasis supplied).

The indictment charges that defendant caused the death of Orlando Miranda by shooting him with a loaded firearm. As pointed out above, the Trial Judge focused the jury’s deliberations on the question of whether Miranda died because of the injury inflicted by the defendant or because of the removal of the kidneys.

From a reading of the charge as a whole it is clear that the jury was being told that if the bullet wound was a proximate cause of Miranda’s death, as commonly understood by laymen and as recognized by the common law (common-law definition) the defendant committed homicide, whereas if Miranda’s death was caused solely by the secondary agency (the doctors’ acts of removing the kidneys) the defendant could not be legally charged with homicide.

To phrase it somewhat differently, from the above-quoted excerpts it is clear that the Trial Judge plainly treated the time of Miranda’s death as taking place after the organ transplantation and the jury could not reasonably have believed that she was referring to death as having occurred at some point earlier in time. The charge required the jury to consider the “independent intervening agency” defense on the merits before concluding that the defendant was guilty.

If the jury in this case had been given the definition of death urged by defendant, namely, brain death, it would have served one purpose and one purpose only, i.e., to establish a time of death sometime prior to the organ transplantation procedure. A finding to the effect that Miranda’s death occurred prior to the nephrectomy would have lead to an improper verdict since under the present state of the law one cannot be guilty of homicide in this State for causing brain death. Moreover, such a finding could only work against the defendant’s intervention defense. Since the Trial Judge’s charge required the jury to consider the independent intervening agency defense, the defendant cannot successfully maintain that the jury may have improperly convicted him of homicide because the trial court did not give the jury the common-law definition of death. In sum, the trial court cannot be faulted for failing to charge brain death and, for the reasons above, I see no basis in this case for reversing the conviction simply because the trial court failed to expressly give the common-law definition of death.

Accordingly, I believe the judgment of conviction should be affirmed.

Titone, J. P.

(dissenting in part and concurring in part). In the absence of a “brain death” standard, which I, too, am unwilling to adopt as a matter of judicial fiat, the evidence is legally insufficient to establish that the defendant caused the decedent’s death. Evidentiary insufficiency aside, the trial court erred in refusing to define for the jury the point at which death occurs. Inasmuch as these questions have been preserved for appellate review, the judgment should be modified by reducing the conviction for manslaughter in the first degree to assault in the second degree. Alternatively, I would order a new trial.

I

We all agreé that it is inappropriate to judicially adopt a brain death standard. My reasons rest upon both moral considerations and the need for judicial restraint in an area peculiarly statutory.

First, judicial enunciation of such a standard is contrary to a long-standing tradition in this State, only recently reaffirmed (see Murphy v American Home Prods. Corp., 58 NY2d 293, 301-302), that an appellate court should not, within the context of adversary litigation, usurp the legislative prerogative to change a settled rule of law when the standard sought to be substituted is itself a changing flexible one such as brain death (see Dolphin Lane Assoc. v Town of Southampton, 37 NY2d 292, 2