6 Year old Taylor Webster died at Mount Sinai Hospital in New York and her foster mother, Joanne Alvarez, was charged with Criminally Negligent Homicide (Penal Law 125.10 – an “E” Felony with no mandatory minimum jail sentence) after Ms. Alvarez gave her a prescription fentanyl “pain patch.” Unfortunately, Taylor’s body could not handle the medications in the patch used for people aged 16 and older and she passed away.
As a former prosecutor in the Manhattan District Attorney’s Office and an experienced criminal defense attorney, I am all too familiar with this type of case where everyone suffers and tragedy reigns. From a legal perspective, the charge of Criminally Negligent Homicide, as opposed to “murder,” appears to be the appropriate charge. Unlike a crime that requires an act to be intentional, meaning a person’s conscious object was to engage in particular conduct, Ms. Alvarez, at his point, is facing charges requiring a different mental state.
Criminal negligence, unlike an intentional or reckless mental state, requires that a person conduct themselves in a manner with respect to particular statute and that person fails to perceive a substantial and unjustifiable risk that a particular result will occur or that particular circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Unfortunately, without all the facts made available to the public, we can only speculate as to whether her conduct was a gross deviation and she failed to perceive an unjustifiable risk. Did the medication have documentation stating that it should not be used on a child under 16 and if so what were/are the stated dangers? Did Ms. Alvarez have a prescription for the drug and does she have access to or use prescription medication for other children in her care? Did she consult with a physician or keep checking on Taylor as she slept? Has she been warned or cited in the past for similar behavior? Again, we can only speculate as to the full set of facts, but it appears clear that her actions were not intentional, i.e., her goal was not to kill a child. Irrespective of her mental state, Taylor unfortunately passed away.