The PEOPLE of the State of New York, Respondent,

Richard W. FLAYHART and Beatrice M. Flayhart, Appellants
Court of Appeals of New York
72 N.Y.2d 737 (1988)


 TITONE, Judge.

 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 [p. 741] to Sheriff's 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, 136 A.D.2d 767, 523 N.Y.S.2d 225.  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;  § 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 A.D.2d 11, 445 N.Y.S.2d 344;  see also, Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y.Book 39, Penal Law art. 125, at 491;  cf., People v. Campbell, 72 N.Y.2d 602, 535 N.Y.S.2d 580, 532 N.E.2d 86).

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[p. 743]

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

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 HANCOCK, J., concurs in a separate opinion. [omitted]