
    The People of the State of New York, Respondent, v Richard W. Flayhart and Beatrice M. Flayhart, Appellants.
    Argued November 17, 1988;
    decided December 20, 1988
    
      POINTS OF COUNSEL
    
      E. Andrew Walton and David R. Garner for Richard W. Flayhart, appellant.
    I. The court deprived defendant of a fair trial by instructing the jury that defendant could be found guilty based on accessorial liability when charged with criminally negligent homicide. (People v Robbins, 83 AD2d 271.) II. The court’s failure to instruct the jury on the element of causation was reversible error given expert testimony that there was an intervening cause of death. (People v Stewart, 40 NY2d 692; People v Padgett, 60 NY2d 142.) III. Evidence of a trust fund passing to defendant should not have been permitted to show motive when defendant was charged with "negligently” causing the death of another. (People v Montanez, 41 NY2d 53; People v Falu, 37 AD2d 1025.) IV. The court’s ruling prohibiting defendant from allowing the jury to view photos of the deceased during the examination of expert witnesses deprived defendant of a fair trial. (People v Pobliner, 32 NY2d 356.) V. The evidence was insufficient to establish defendant’s guilt beyond a reasonable doubt when even the prosecution’s medical experts did not know the cause of the deceased’s deadly aspiration pneumonia. (People v Montanez, 41 NY2d 53.)
    
      Thomas J. Snider for Beatrice Flayhart, appellant.
    I. It is not logically possible for an individual to be prosecuted on an "acting in concert” theory of criminal liability for a criminally negligent homicide charge. II. It is not legally possible for an individual to be prosecuted on an "acting in concert” theory of criminal liability for a criminally negligent homicide charge. (People v Gramaglia, 71 AD2d 441; People v Lieberman, 3 NY2d 649; People v Abbott, 84 AD2d 11; People v Robbins, 83 AD2d 271.) III. Even if it is determined to be logically and legally possible to sustain a criminally negligent homicide charge on an acting in concert theory, the charge should be dismissed because the jury instructions were improper where the court indicated that it would charge the jury that separate findings must be made and then failed to do so.
    
      Charles A. Gardner, District Attorney (Jane M. Getman of counsel), for respondent.
    In People v Flayhart (Richard): I. Accessory liability may attach when one is charged with criminally negligent homicide. (People v Gramaglia, 71 AD2d 441; People v Abbott, 84 AD2d 11; People v Torres, 111 AD2d 969, 66 NY2d 768; People v Henson, 33 NY2d 63.) II. The Judge’s charge to the jury concerning causation was adequate. 
      (People v Kibbe, 35 NY2d 407; People v Stewart, 40 NY2d 692.) III. Evidence of the trust fund was proper where defendant was charged with manslaughter as well as criminally negligent homicide. (People v Stanfield, 36 NY2d 467; People v Montanez, 41 NY2d 53; People v Walker, 58 AD2d 737.) IV. The procedure employed by the trial court in publishing the photographic evidence to the jury was a proper exercise of the court’s discretion. (People v Pobliner, 32 NY2d 356; People v McNeeley, 77 AD2d 205.) V. The evidence was sufficient to support the verdict. (People v Bleakley, 69 NY2d 490; People v Kibbe, 35 NY2d 407.) In People v Flayhart (Beatrice): I. It is logically possible for a person to be prosecuted on an "acting in concert” theory for criminally negligent homicide. II. It is legally possible to be prosecuted on an "acting in concert” theory of criminal liability for criminally negligent homicide. (People v Gramaglia, 71 AD2d 441; People v Abbott, 84 AD2d 11; People v Torres, 111 AD2d 939; People v Robbins, 83 AD2d 271.) III. The charge to the jury was proper. IV. Defendant’s other claims of error do not require reversal. (People v Arca, 72 AD2d 205.)
   OPINION OF THE COURT

Titone, J.

Defendants Richard and Beatrice Flayhart, who are husband and wife, were charged with reckless manslaughter and criminally negligent homicide on the theory that, acting together and with the requisite culpable mental states, they engaged in conduct that brought about the death of Richard’s brother, Terry Flayhart. Terry, who lived with defendants during the last period of his life, was mentally retarded and afflicted with a number of ailments, including cerebral palsy and epilepsy. The People’s case against defendants was based on the premise that Terry, who weighed approximately 75 pounds just before his death, had died of neglect while he was living in defendants’ home and was totally dependent upon their care.

The medical evidence introduced at defendants’ trial showed that Terry had died of malnutrition and inflammation of the lungs, with pneumonia as a complicating factor. There was also evidence that the lung inflammation was the result of Terry’s having aspirated food from his stomach which had been ingested some six hours earlier. The other evidence against defendants consisted primarily of their own statements to Sheriffs deputies regarding their care of Terry, some background information relating to Terry’s history, proof of a $122,000 trust fund that had been established to pay for Terry’s care and proof that Terry had not seen his regular doctor during the last two years of his life.

At the close of the evidence, the trial court submitted the charged counts to the jury, along with an instruction on accomplice liability under Penal Law § 20.00. The jury found defendants guilty of criminally negligent homicide, and each defendant was sentenced to a term of imprisonment. The judgments of conviction were affirmed by the Appellate Division. This appeal, taken by permission of a Judge of this court, ensued.

Defendants’ primary contention on their appeals to this court is that the convictions cannot be sustained because it is logically impossible to "aid and abet” criminally negligent homicide, an unintentional crime. Specifically, they contend that the crime of which they were convicted is nonexistent because one cannot "intentionally aid” another to "fail to perceive a substantial and unjustifiable risk” of death, the requisite mental state for criminally negligent homicide (see, Penal Law § 15.05 [4]; § 20.00).

However, Penal Law § 20.00 imposes accessorial liability on an accomplice not for aiding or encouraging another to reach a particular mental state, but rather for intentionally aiding another to engage in conduct which constitutes the charged offense while himself "acting with the mental culpability required for the commission” of that offense. Thus, defendants were convicted because the jury found that each of them, while "fail[ing] to perceive a substantial and unjustifiable risk” of death, intentionally aided the other to engage in certain conduct, such as failure to provide food and medical care, which ultimately brought about Terry Flayhart’s death (see, Penal Law § 125.10). There is no logical or conceptual difficulty with such convictions (see, People v Abbott, 84 AD2d 11; see also, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 491; cf., People v Campbell, 72 NY2d 602).

Defendants also make a number of claims relating to the fairness of their trial. Only two of these merit comment.

Defendant Richard Flayhart argues that the trial court committed reversible error when, over timely objection, it permitted the prosecutor to introduce evidence that he was in line to inherit the trust fund that had been established to pay for Terry’s care in the event that Terry died. The trust fund evidence was admitted on the theory that it constituted proof of a motive. Defendant contends that the admission of this evidence was improper because it was irrelevant to any material issue in this case involving unintentional crimes.

Contrary to defendant’s contention, however, the trust fund evidence was not wholly irrelevant. In addition to the criminally negligent homicide count on which he was ultimately convicted, defendant was charged with reckless manslaughter (Penal Law § 125.15 [1]), which includes as an element awareness of and conscious disregard for a substantial and unjustifiable risk of death (Penal Law § 15.05 [3]). Although this element is not the same as an "intentional” mental state within the technical meaning of Penal Law § 15.05 (1) (having a "conscious objective * * * to cause [a] result or to engage in [prohibited] conduct”), it does suggest some deliberate mental activity — i.e., conscious disregard for a known risk. In this respect, the term "unintentional” crime is something of a misnomer when applied to the crime of reckless manslaughter.

Because reckless manslaughter includes an element of deliberate conduct, the admission of evidence of a motive may be justified in a proper case. In this instance, for example, the jury could have considered the trust fund as some evidence of defendant Richard Flayhart’s incentive to disregard the obvious risk that his brother would die if his basic medical and nutritional needs were neglected. Thus, its admission in evidence was not erroneous.

Both defendants also argue that the trial court erred in the manner in which it handled certain photographs of Terry’s body that were made available during their trial. The court refused to permit the jury to examine the photographs during either the defense attorneys’ cross-examination of the People’s medical expert or their summations. However, the photographs were marked as exhibits and the jury was permitted to inspect them during its deliberations. Defendants now contend that they were prejudiced by the court’s rulings.

Although the court’s decisions in relation to the photographs were somewhat unusual, we cannot say that they constituted an abuse of the court’s discretionary power to manage the conduct of the courtroom proceedings and determine the manner in which the jury would be exposed to stark photographic evidence (see, People v Pobliner, 32 NY2d 356). The trial court refused defense counsels’ request to allow the jury to view the photographs during cross-examination and summations because it was concerned that the jury would be distracted by the graphic physical evidence and also because it feared that the jury would use the photographs as a basis for forming an opinion before all of the evidence was complete. We note that the court did not prevent counsel from referring to the photographs during summation or showing them to the People’s medical expert during cross-examination. Moreover, as the trial court observed, the jury was entitled to request a readback of the expert’s testimony if, after deliberating, it found itself confused about any references that might have been made to the photographs. Since no prejudice or error is evident, there is no basis to disturb the convictions or rulings below.

Defendants’ remaining contentions are either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Hancock, Jr., J.

(concurring). I concur in the result and the majority opinion except for one point. I cannot agree that the trust agreement was properly admitted into evidence. Proof that a defendant would profit by the death of the victim is, of course, relevant and, at times, persuasive circumstantial evidence that the defendant desired the victim’s death and had a motive for causing it. It is, therefore, relevant on the question of whether the defendant intentionally caused the victim’s death (see, People v Fitzgerald, 156 NY 253, 258). But evidence that the defendant desired the victim’s death and, therefore, intended to cause it, cannot be relevant where the defendant is not charged with acting intentionally, i.e., acting with a "conscious objective * * * to cause such result” (Penal Law § 15.05 [1]).

The defendants here are not charged with intentional conduct but with acting recklessly. As the term is used in the Penal Law a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (§ 15.05 [3]). A finding of recklessness requires two inquiries: (1) whether the person was, in fact, aware of a substantial and unjustifiable risk, a subjective element; and (2) whether such person’s conscious disregard of that risk constituted a gross deviation from a standard of reasonable care, an objective element. I believe that analysis shows that proof of the existence of the trust fund cannot be relevant to either component.

Obviously, proof that a defendant would profit from the victim’s death and, therefore, arguably desired it can have no bearing on the first element: whether defendant had knowledge or an awareness of a risk to the victim. Nor can such evidence of motive or desire be relevant on the question of whether a defendant’s conduct, in disregarding the risk, constituted a gross deviation from the ordinary standard of care. Reckless conduct differs from negligent conduct in the degree of deviation. If the deviation is gross, it is reckless or grossly negligent conduct. But, it is still negligent conduct — conduct based on an objective standard. It is not intentional conduct, and because it is not, proof of defendants’ intent, motive, or desire is irrelevant (see, People v Terry, 104 AD2d 572, 573; People v Falu, 37 AD2d 1025, 1026; see also, People v Campbell, 72 NY2d 602, 605-606).

Finally, contrary to the People’s argument the fact that defendants would have profited from the victim’s death cannot be admissible on the question of whether their disregard of the substantial risk was a conscious disregard. The word "conscious” as used in Penal Law § 15.05 (3), I submit, refers to the actor’s mental process of knowing, perceiving, or being aware of the risk (see, Webster’s Third New International Dictionary 482 [1986]). It does not, as the People contend, connote conduct that is in any sense intentional, deliberate, or willful. To read that meaning into the term produces a concept that is elusive, to say the least — intentionally or deliberately disregarding a risk of an unintended result of that disregard. It would also contradict the underlying theory of a reckless crime, i.e., a crime where the result is unintended and criminality depends on the extent of the deviation of the conduct from an objective reasonable standard. I cannot believe the Legislature had this in mind.

In sum, the admission of proof bearing on defendant’s intent in committing an unintentional crime was plain error. In view of the overwhelming evidence of guilt of the lesser crime of criminal negligence, however, I am persuaded that a reversal is not required (see, People v Crimmins, 36 NY2d 230, 241).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur with Judge Titone; Judge Hancock, Jr., concurs in a separate opinion.

Order affirmed.  