dissenting:
I respectfully dissent because I think that a lay jury could not, consistent with the Constitution, find that the State proved the elements of the crimes charged, in the absence of competent medical opinion testimony. Moreover, I do not believe that sufficient evidence was adduced at trial to prove that Einaugler had the requisite knowledge of the risk to his patient to sustain a conviction under the statutes at issue.
The majority acknowledges that a constitutional violation would have occurred if Einaugler was convicted without proof required by New York law. But it can discern no requirement in that law of direct expert testimony. In my view, the requirement is inherent in the nature of the crimes charged, and arises from New York appellate decisions.
The State charged that Einaugler, in his medical treatment of Alida Lamour, committed the crimes of reckless endangerment and willful patient neglect. As the majority notes, and in the context of this case, the reckless endangerment charge required proof that Einaugler, in the course of his medical treatment of Lamour, recklessly engaged in conduct that created a substantial risk of serious physical injury. The element of recklessness required proof that Einaugler’s medical treatment grossly deviated from a reasonable physician’s standard of conduct, and that Einaugler consciously disregarded a substantial risk of death or protracted impairment. A charge of wilful patient neglect required proof that Einaugler failed to provide appropriate medical treatment to Lamour, with knowledge that his conduct was illegal.
The State offered no medical expert opinion testimony that the delay in transferring Lamour from the nursing home to the hospital would create the kind of risk required under the statute. If Lamour’s estate had sued Einaugler for malpractice on that theory, the case could not have gone to the jury without such evidence, see Sitts v. United States, 811 F.2d 736, 739-41 (2d Cir.1987) (applying New York law), because the issues presented would “quite obviously not [be] ... within the realm of competence of a lay jury,” McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20, 255 N.Y.S.2d 65, 68, 203 N.E.2d 469 (Ct.App.1964). I think it is anomalous to conclude that New York law allows the imposition of criminal sanctions on the basis of proof 'less demanding than that required to establish civil liability. The inability of lay jurors to make medical judgments is the same in either case.
The majority is not troubled by that because no New York court has held that a conviction for criminal reckless endangerment of a patient by a treating physician requires direct expert testimony. I concede that narrow point, but do not consider it dispositive. There is ample authority in the New York cases for the broader proposition, logically applicable to the case at bar, that a lay jury may not convict a defendant of criminal conduct if expert opinion testimony is necessary to prove an essential element of the crime. This is as true when the issue for the jury is the degree of risk posed by the *844defendant’s conduct in a reckless endangerment prosecution, see People v. Grossman, 124 A.D.2d 974, 508 N.Y.S.2d 815, 816 (4th Dept.1986) (“Although most people are familiar generally with the properties of natural gas, whether the actions of the defendant created a grave risk of death is not within the common understanding of the average layperson, and expert testimony was required to meet the People’s burden of proof’) (citations omitted), appeal denied, 69 N.Y.2d 746, 512 N.Y.S.2d 1050, 505 N.E.2d 248 (Ct. App.1987), as it is with any other matter not normally within a criminal jury’s understanding, see People v. Kenny, 36 A.D.2d 477, 320 N.Y.S.2d 972, 974 (3d Dept.1971) (prosecution for possession of marijuana) (“Expert evidence was required to identify the substance since the subject under consideration was not within the knowledge or experience of ordinary jurors.”), aff'd 30 N.Y.2d 154, 331 N.Y.S.2d 392, 394, 282 N.E.2d 295 (Ct.App. 1972) (“It seems probable that a number of people in the general community now can, or think they can, recognize marijuana, but the resulting skill is not yet so general that the State should be willing to rest a conviction and prison sentence solely on a young person’s two or three isolated experiences with what he thinks is ‘pot.’ ”).
At the very least, whether Einaugler’s medical treatment of Lamour created a significant risk of her death, or constituted willful patient neglect, are questions equally beyond the common understanding of the average layperson. Accordingly New York law required the State to furnish expert evidence, and in its absence these convictions should not stand.4
Even were I to accept the majority’s construction of New York law, I could not agree that the jury was presented with sufficient evidence to support Einaugler’s conviction. I find the proof adduced by the State at trial entirely inadequate to show that Einaugler acted in conscious disregard of the risk to Lamour’s life, as is required under the reckless endangerment statute, or that he knew his conduct was illegal, as is required to show a violation of the Public Health Law. Unlike the majority, I do not find evidence for the proposition that Einaugler, as a result of his telephone conversation with Dunn, was aware that a ten hour delay in treatment would place Lamour at substantial risk of serious physical injury.
According to the majority, it was possible for a reasonable jury to infer that Dunn “conveyed immediacy” when he instructed Einaugler to transfer his patient. The majority supports this proposition with a notation indicating that Lamour was to be sent to the “ER,” and Dunn’s statement that he told Einaugler that Lamour should be “admitted to the hospital ... period.”
The “ER” note states only that Lamour should be sent for “evaluation,” not that any emergency treatment was warranted. As to Dunn’s testimony, it is indeed probative — not of the State’s argument, but of the appellant’s. When Dunn’s quote is read in context, it permits only the opposite conclusion from that drawn by the majority. Here is the full text of the exchange at issue:
Court: Did you direct Dr. Einaugler to have the patient sent to a hospital immediately?
Dunn: I directed the patient — Dr. Einaugler to have the patient admitted, period.
Court: What did you mean by that?
Dunn: I meant it should be done in urgent fashion, which would probably mean that day.
State: Now, did you expect Dr. Einaugler to do that directly?
Dunn: Yes, as indeed the patient to the hospital was admitted that day ....
Two things may be divined from this passage. First, Dunn denied telling Einaugler that Lamour needed to be transferred imme*845diately.5 Second, to the extent Dunn believed that Lamour needed to be treated ■within a certain time period, Einaugler ultimately complied with Dunn’s wishes.
In any event, both strands of evidence to which the majority clings are inadequate to overcome the clear assertions made by Dunn himself. At trial Dunn continually declined to accept the proposition that the majority now seeks to infer from the above cited exchange and from the “ER” notation: that he conveyed to Einaugler that Lamour needed to be transferred immediately. Rather, he testified again and again that he did not believe Lamour’s condition warranted such advice. For example, he stated specifically that he did “not think that there was an emergency situation” when he spoke to Einaugler; he “would say even on Monday morning that [Lamour] was not in immediate danger of dying”; and a delay of 10-11 hours in Lamour’s transfer would not have caused him to “rant and rave,” but was “in the realm of the window that [he] had to work with.”
In short, to find Einaugler guilty of this charge, the jury had to conclude that Dunn instructed Einaugler in a manner contrary to his own professed beliefs as to the proper timeframe for transfer, and contrary to what he told the court he had intended to convey. This Court’s precedents concededly allow us great leeway in cobbling together inferences in support of a jury verdict. I do not believe, however, that we may conclude that a witness’s testimony meant something which the witness himself said it did not.6
On this appeal, we must be satisfied that there was enough evidence to prove each element beyond a reasonable doubt. See U.S. v. Martinez, 54 F.3d 1040, 1043 (2d Cir.)(opinion of Walker, J.), cert. denied, — U.S. -, 116 S.Ct. 545, 133 L.Ed.2d 448 (1995). The majority’s construction of the record is premised on a level of deference to a jury’s findings which is unwarranted, even under the narrow standard of review applicable to claims of insufficient evidence.
The fruits of such deference are apparent from the facts of this case. It is undisputed that when Einaugler learned of his patient’s condition, he contacted a nephrologist who could advise him on how to proceed. That nephrologist, according to his own testimony, told Einaugler to get Lamour into a hospital, by which he meant that Einaugler should do so “that day.” Ten hours later, Einaugler complied with these instructions. For this conduct, he has been branded a felon.
Because I do not believe that the proof adduced at trial can support this conclusion, and because the jury was required to draw inferences which it was not competent to make in order to reach a guilty verdict, I respectfully dissent. I would reverse the district court and allow the writ.
. The majority argues that the New York courts’ affirmance of Einaugler's conviction provides evidence that New York law does not require expert opinion testimony in a prosecution for reckless endangerment by a physician of his patient. I do not think that is a sufficient response to a Federal habeas proceeding, particularly where the opinions in question did not address the issue. Every time this Court reviews a properly exhausted habeas petition raising sufficiency of the evidence, the state appellate courts have already rejected that claim.
. Dunn himself has corroborated this interpretation in an affidavit contained in the parties' joint appendix. See Dunn Aff. ¶ 3 in App. 1731 ("By my answer, I intended to convey to the jury that I did not tell Dr. Einaugler there was an immediate need for hospitalization of the patient.”). It is not clear if the appellant has presented this document to the requisite levels of state collateral review so that it may be considered in ruling on his habeas petition, and my dissent is not premised on this evidence, as the record itself amply confirms Dunn's present explanation of his testimony. It should give us some pause, however, that the majority’s construction of the record is not even supported by the very witness upon whose testimony it relies.
. The other evidence relied on by the majority also does not stand up to scrutiny. Khaski, who was not a nephrologist, merely counseled Einaugler that Lamour should be hospitalized; he said nothing about the time frame in which this should take place, and was entirely silent on the risk of a ten hour delay. Unlike the majority, I cannot find any support in Khaski’s testimony for the notion that Einaugler was told the transfer should be undertaken “in short order”; Khaski gave no such indication. Furthermore, Khaski spoke to Einaugler "around midday,” only about four hours before Lamour was transferred.