Opinion
May 29, 1962
Judgment of conviction for manslaughter in the first degree (Penal Law, § 1050) after trial unanimously affirmed. The only serious question in the case, and it is troublesome indeed, is the nexus of proof that the wood alcohol sold by defendant through two intermediate sales was the cause of death of the victims. Considering only the evidence competent against the appealing defendant, it is concluded that there was sufficient to entitle a jury to so conclude. Defendant admitted the sale to Rodriquez. The witness Vega testified that he overheard Rodriquez arrange for the sale and delivery to Diaz. There was no other proof of delivery under the sale. The victims died of wood alcohol sold to them in mixed beverages by Diaz. Wood alcohol was found in Diaz' premises together with other quantities of grain alcohol. In the absence of proof or circumstance that Diaz purchased wood alcohol from sources other than Rodriquez, although obviously he purchased the grain alcohol from other sources, the jury was entitled to infer that it was defendant's wood alcohol, passed through Rodriquez, which Diaz sold to the victims. In dealing with a fungible good like wood alcohol, the problem of specific tracing is virtually impossible if the containers have been changed in the process, which was the case here. What is left as a basis for inference are the probabilities of uninterrupted transmission through intermediate handlers. The probabilities to be assessed were for the triers of the facts, once it became evident that at least a threshold probability of uninterrupted transmission was present. There was no evidence of a competing source.
Concur — Breitel, J.P., Rabin, McNally, Eager and Steuer, JJ.