People v. Jorgensen

OPINION OF THE COURT

On May 30, 2008, defendant, driving eastbound on Whiskey Road in Suffolk County, entered the westbound lane and struck the vehicle of Robert and Mary Kelly head on, killing them both. At the time of the collision, defendant was 34 weeks’ pregnant. She was taken to a local hospital where, due to signs of fetal distress, she consented to an emergency cesarean section. Despite the best efforts of hospital personnel, the baby died six days later. An autopsy confirmed that the cause of death was due to injuries sustained in the accident.

Thirteen months later, defendant was indicted on three counts of manslaughter in the second degree (Penal Law § 125.15 ^[1]), one count of aggravated vehicular homicide (Penal Law § 125.14), and one count of operating a motor vehicle while under the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4-a]).^[1] After the first jury failed to reach a unanimous verdict, the parties proceeded to a second trial on all counts.

Following deliberations, the jury returned a verdict finding the defendant not guilty on all counts except manslaughter in the second degree for the death of her child. The Appellate Division affirmed defendant’s conviction ( 113 AD3d 793 [2d Dept 2014]). A Judge of this Court granted defendant leave to appeal ( 23 NY3d 1063 [2014]). We now reverse.

The underlying facts and circumstances of this appeal are tragic to all parties involved. The sole issue that we reach on this appeal, however, is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in útero where the child was born alive but died as a result of that injury days later (see People v Martinez, 81 NY2d 810 [1993] ).^[2] We hold that it is evident from the statutory scheme that the legislature, in enacting Penal Law §§ 125.05 (1) and 125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.

The issue is strictly one of statutory interpretation. As relevant here, “[a] person is guilty of manslaughter in the second degree when . . . [h]e [or she] recklessly causes the death of another person” (Penal Law § 125.15 [1]). Penal Law § 125.05 (1) provides that, when referring to the victim of a homicide, a person is “a human being who has been born and is alive.” The question is, did the legislature, through its enactment of the two statutory provisions, intend to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that

This is a case of first impression. The legislature’s definition of the word “person,” when referring to a homicide victim, as “a human being who has been born and is alive,” is relatively broad. When it is read in conjunction with the manslaughter in the second degree provision at issue here, however, it is also ambiguous as to whether the legislature intended to criminalize a mother’s own reckless conduct directed at herself and, consequently, the fetus. Consideration of the entire statutory scheme is necessary in order to divine whether the legislature intended to criminalize such conduct.

Where the legislature has decided to criminalize a pregnant woman’s conduct towards her unborn fetus, it has clearly established statutory prohibitions against such conduct. In this regard, the legislature has made it a class B misdemeanor for a pregnant woman to “commit[ ] or submit! ] to an [unjustifiable] abortional act upon herself” (Penal Law § 125.50 [self-abortion in the second degree]).^[3] According to Penal Law § 125.00, the crime of self-abortion in the second degree is not considered a “homicide.” Further, the legislature has determined that a woman who is pregnant for more than 24 weeks, and who commits or submits to an unjustifiable “abortional act” that causes her to miscarry, is guilty of a class A misdemeanor (Penal Law § 125.55), not a felony.

Both “self-abortion” statutes require the mens rea of intent, and, yet, the legislature has determined that the punishment for such intentional conduct is no greater than a misdemeanor. In contrast, the manslaughter in the second degree statute under which defendant was charged and convicted is a class C felony, and requires that the People prove that defendant acted with the mental state of “recklessness,” i.e., that she was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that a particular result would occur or circumstance existed (Penal Law § 15.05 ^[3]). We conclude that the legislature did not intend to impose greater punishment on

Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so. Moreover, had defendant’s fetus died in útero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a “person” (Penal Law § 125.05 [1]; see People v Vercelletto, 135 Misc 2d 40 [Ulster County Ct 1987] [dismissing the count of vehicular manslaughter in the second degree against a defendant who struck a car being operated by a pregnant woman, resulting in a stillbirth, holding that the stillborn fetus was not a “person” under the statute]; People v Joseph, 130 Misc 2d 377 [Orange County Ct 1985] [dismissing the counts of criminally negligent homicide and vehicular manslaughter against defendant for causing the death of an unborn child]).^[4]

The People concede that, had defendant not consented to the cesarean section with the result that the child be born alive, she would not have been prosecuted for manslaughter in the second degree. Thus, if we accorded the word “person” the interpretation advocated by the People, it would create a perverse incentive for a pregnant woman to refuse a cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct, jeopardizing the health of the woman and the unborn fetus. This is plainly not what the legislature intended when it enacted the definition of “person” under section 125.05 (1) or the manslaughter in the second degree offense as delineated in Penal Law § 125.15 (1). To interpret the statutory provisions otherwise would enlarge their criminal reach beyond what the legislature

The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in útero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor. Conceivably, one could find it “reckless” for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions. Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother. At present, such conduct, if it caused a stillbirth, would not result in criminal prosecution of the mother if the fetus died in útero. Any change in the law with regard to such matters would be within the province of the legislature.

Accordingly, the order of the Appellate Division should be reversed, and the remaining count of the indictment dismissed.

(dissenting). I respectfully dissent and would affirm the Appellate Division’s order. I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.^[1]

On the afternoon of May 30, 2008, defendant was the operator of a motor vehicle traveling on Whiskey Road, a curvy thoroughfare in a heavily wooded area of Suffolk County that was divided by a double-yellow line and that provided one lane of travel in each direction. According to the People, defendant, who was 34 weeks’ pregnant, was under the combined influence of alcohol and a prescription drug, using a mobile telephone, and speeding at the time. Undisputed is the fact that the vehicle operated by defendant crossed from its lane of travel into the path of an oncoming vehicle occupied by Robert and Mary Kelly. As a result of the collision that ensued, both of the Kellys died and defendant’s baby was delivered via an

I agree with the majority that this issue is strictly one of statutory interpretation (majority op at 89), but I disagree with its reading of the pertinent statutes. My analysis begins with Penal Law § 125.05, which is entitled “Homicide, abortion and related offenses; definitions of terms.” As its title suggests, section 125.05 contains “definitions . . . applicable to [Penal Law] article [125].” Included in the terms defined is “person” which, “when referring to the victim of a homicide, means a human being who has been born and is alive” (§ 125.05 [1]).

Based on that language alone, a reasonable mind perhaps could conclude that the Penal Law does not provide for criminal liability for manslaughter in the second degree in this context. However, section 125.05 is to be read in tandem (see generally Matter of Wallach v Town of Dryden, 23 NY3d 728 , 744 [2014], rearg denied 24 NY3d 981 [2014]; McKinney’s Cons Laws of NY, Book 1, Statutes § 97) with, inter alia, Penal Law § 125.00, which is entitled “Homicide defined” and which states that

In so concluding I note that the Appellate Division reached a similar result in People v Hardy ( 128 AD3d 1453 [4th Dept 2015], lv denied 25 NY3d 1202 [2015]). There, the “conviction arose from an incident that began when [the defendant] fled the scene of an attempted petit larceny” in an automobile (id. at 1453).

“During that flight, [the defendant’s] vehicle crossed the center line [of the road on which it traveled], side-swiped a car, then collided head-on with another vehicle driven by a woman who had been pregnant for approximately 23 weeks, causing her to sustain severe injuries. In order to save the mother’s life, her female child was delivered by cesarean section,” and “[t]he child’s heart beat for about 2V2 hours before she died” (id. at 1453-1454).

The Appellate Division determined that the evidence was legally sufficient to support the conviction of manslaughter in the second degree (Penal Law § 125.15 [1]) “inasmuch as the child ‘was a “person” from the moment of her birth . . . , notwithstanding that [the] defendant may have perpetrated the act that caused the injury prior to her birth’ ” (id. at 1455, quoting People v Hayat, 235 AD2d 287 , 287 [1st Dept 1997], lv denied 89 NY2d 1036 [1997]).

Similar to Hardy is People v Hall ( 158 AD2d 69 [1st Dept 1990], lv denied upon reconsideration 76 NY2d 1021 [1990]),