Issue before the Court: Whether evidence was legally sufficient to charge heroin dealer whose customer overdosed and died with second-degree (reckless) manslaughter, or alternatively with criminally negligent homicide?

Factual Background: Two days after Gaworecki sold him five bags of heroin, the deceased died. Gaworecki had warned the deceased “to be careful” at the time he sold him the heroin. Residue from the bags Gaworecki sold the deceased tested positive for heroin, but not for fentanyl (although residue from a bag similar to the one Gaworecki sold the deceased, recovered from Gaworecki’s car tested positive for heroin and fentanyl).

Held: In a unanimous decision, the Court held that the evidence was legally insufficient to establish Gaworecki’s mens rea for either offense. The evidence before the grand jury, even when viewed in the light most favorable to the prosecution, did not establish that there was a substantial and unjustifiable risk that his customer would die. It was not enough that Gaworecki knew the heroin was “strong,” because it is common knowledge that some samples of heroin are stronger than others. In order to establish a sufficient risk, the prosecution must show a threat beyond the “general . . . injuriousness of drug-taking.”

CAL Observes: A little over two years ago in People v. Li, the Court of Appeals held that a physician who ran a “pill mill,” and wrote prescriptions for opiods, Xanax, and other medications to patients he knew were at risk of overdosing could be prosecuted for second-degree manslaughter. In dissent, Judge Wilson warned that the Court’s reasoning could be applied to prosecute ordinary street-level drug sellers for homicide. In this case, the Binghamton District Attorney’s Office tried (and failed) to do just that.

There remains, even after this decision, significant uncertainty about the circumstances under which a person who sells drugs to another person who dies can be prosecuted for a homicide offense. Li and Gaworecki represent two poles. Judge Fahey, writing for the unanimous Court in Gaworecki, emphasized that Li was a physician who failed in his professional obligations, wrote prescriptions for the decedents even after receiving indications (both medical, and from the family members of his patients) that they were addicted to drugs, and that he prescribed drugs in quantities likely to lead to overdoses. Gaworecki, by contrast, seems to have made an ordinary street-level heroin sale. But what about other scenarios? For example, if a street-level dealer mixes heroin with fentanyl (the Court here was careful to note that there was no evidence of fentanyl in the drugs Gaworecki sold the deceased)? Or if he’s heard of other overdoses from a particular batch? Or if he knows the deceased is struggling with drug addiction or has overdosed before? Be on the lookout for cases testing those limits in the future.