This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 179
The People &c.,
            Respondent,
        v.
Jennifer Jorgensen,
            Appellant.




            Richard E. Mischel, for appellant.
            Karla Lato, for respondent.
            National Advocates for Pregnant Women et al., amici
curiae.




PIGOTT, J.:
            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

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                                                            No. 179

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 alcohol or drugs (Vehicle & 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.
           The People's theory was that defendant was traveling in
excess of 50 miles per hour in a 30 mile-per-hour zone and, while
under the influence of prescription drugs and/or alcohol, struck
the Kelly vehicle in the Kellys' lane of traffic.   As a result of
the collision, defendant, who was not wearing a seatbelt, struck
the steering wheel, causing injury to her unborn fetus.   The
People's argument at trial was that defendant's reckless conduct
not only resulted in the death of the Kellys, but also her six-
day-old child.



     1
        Prior to defendant's first trial, the defense
successfully moved for the dismissal of the counts of operating a
motor vehicle while using a mobile telephone, speeding, and
endangering the welfare of a child, the last count being
dismissed because the court held that the crime did not apply to
an unborn fetus (26 Misc 3d 1232 [A] [Sup Ct, Suffolk County
2010]).

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                                                              No. 179

          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.   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 utero 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


     2
        We have no occasion to reach the remaining issues raised
by defendant.

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                                                              No. 179

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 results in postnatal death?   Under the current statutory
scheme, the answer to this question is no.
          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




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                                                             No. 179

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
pregnant women for their alleged reckless conduct toward a fetus
than for their intentional conduct.     While both first and second



     3
        The Penal Law defines an "abortional act" as "an act
committed upon or with respect to a female, whether by another
person or by the female herself, whether she is pregnant or not,
whether directly upon her body or by the administering, taking or
prescription of drugs or in any other manner, with intent to
cause a miscarriage of such female" (Penal Law § 125.05 [2]
[emphasis supplied]).

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                                                           No. 179

degree manslaughter statutes have provisions referencing pregnant
women, those references are only in the context of non-
justifiable "abortional acts" resulting in the death of the
mother (as opposed to the child) (see Penal Law § 125.20 [3]
[manslaughter in the first degree]; § 125.15 [2] [manslaughter in
the second degree]).
          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 utero,
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 [County Ct, Ulster County
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 [County Ct, Orange County 1985]
[dismissing the counts of criminally negligent homicide and
vehicular manslaughter against defendant for causing the death of
an unborn child]).4

     4
       These cases and the present case are distinguishable from
those cases where a third party has assaulted a pregnant woman,
resulting in the death of the child after its birth (see e.g.

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                                                              No. 179

           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 intended (see
People v Wood, 8 NY2d 48, 51 [1960] [providing that "(p)enal
responsibility, unlike moral responsibility, cannot be extended
beyond the fair scope of the statutory mandate"]).
           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
utero 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



People v Hall, 158 AD2d 69 [3d Dept 1990], lv denied 76 NY2d 1021
[1990]).

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                                                             No. 179

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 utero.   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.




                               - 8 -
The People of the State of New York v Jennifer Jorgensen
No. 179




FAHEY, J.(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 emergency cesarean
section. Ultimately, however, the baby’s respiratory, renal, and

     1
          Defendant raises several contentions on appeal, and in
my view none has merit. Given the narrowness of the majority
opinion, however, I will limit my discussion to the core question
on this appeal, that is, whether the six-day-old child was a
“person” within the meaning of Penal Law § 125.15 (1).

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                               - 2 -                       No. 179

neurological problems proved insurmountable, and she died six
days after her birth as a result of what the autopsy report
characterized as “hypoxic encephalopathy and prematurity” due to
“abruptio placentae,” which in turn was attributed to “maternal
blunt force trauma.”2   Following various events immaterial to the
main issue on this appeal, defendant was charged by indictment
with three counts of manslaughter in the second degree (Penal Law
§ 125.15 [1]) with respect to the deaths of each of the Kellys
and the baby.   The ensuing jury trial saw defendant acquitted of
the manslaughter counts related to the Kellys3 but convicted of
the manslaughter count pertaining to the baby, and on appeal the
Appellate Division affirmed the judgment (113 AD3d 793 [2d Dept
2014]).
          I agree with the majority that this issue is strictly
one of statutory interpretation (majority op., at 3), but I
disagree with its reading of the pertinent statutes.   My analysis
begins with Penal Law § 125.05, which is entitled “Homicide,

     2
          Hypoxic encelphalopathy is a condition that occurs when
the brain is deprived of oxygen, whereas abruptio placentae (also
known as placental abruption) is the premature separation of the
placenta from the uterus.
     3
          To be clear, the trial considered the aforementioned
manslaughter counts, as well as one count each of aggravated
vehicular homicide (Penal Law § 125.14) and driving while ability
impaired by the combined influence of drugs or of alcohol and any
drug or drugs (Vehicle and Traffic Law § 1192 [4-a]) that were
levied in a prior indictment. The latter counts survived
defendant’s motion to dismiss the prior indictment, and the jury
acquitted defendant of those counts as well as of the counts of
manslaughter in the second degree pertaining to the Kellys.

                               - 2 -
                               - 3 -                         No. 179

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; 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
          “[h]omicide means conduct which causes the
          death of a person or an unborn child with
          which a female has been pregnant for more
          than [24] weeks under circumstances
          constituting murder, manslaughter in the
          first degree, manslaughter in the second
          degree, criminally negligent homicide,
          abortion in the first degree or self-abortion
          in the first degree.”
          Section 125.00 clearly states a legislative intent to
protect both the born and “unborn child[ren] with which a female
has been pregnant for more than [24] weeks.”   With that precept
in mind I turn to Penal Law § 125.15 (1), which embodies the
crime of manslaughter in the second degree of which defendant was
convicted.   Pursuant to that section, “[a] person is guilty of


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                               - 4 -                         No. 179

manslaughter in the second degree when . . . [h]e [or she]
recklessly causes the death of another person . . . .”
“Recklessly” is defined in Penal Law § 15.05 (3), which states
that:
          “A person acts recklessly with respect to a
          result or to a circumstance described by a
          statute defining an offense when he [or she]
          is aware of and consciously disregards a
          substantial and unjustifiable risk that such
          a result will occur or that such circumstance
          exists. The risk must be of such nature and
          degree that disregard thereof constitutes a
          gross deviation from the standard of conduct
          that a reasonable person would observe in the
          situation. A person who creates such a risk
          but is unaware thereof solely by reason of
          voluntary intoxication also acts recklessly
          with respect thereto.”
          Distilled to its essence, defendant’s contention, which
the majority credits, is that because her allegedly reckless
conduct did not occur while the baby was a person, that is,
because the allegedly reckless conduct occurred before the baby
was born alive, she cannot be convicted of a crime that requires
her reckless actions to have caused the baby’s death.    I disagree
because I see no such temporal qualification in the relevant
parts of the Penal Law.   Where, as here, the baby-victim is born
alive but subsequently dies, the Penal Law allows for the
conviction of a defendant-mother of manslaughter in the second
degree where the acts causing that baby’s death occurred before
that infant was born.
          The pertinent parts of the Penal Law speak to victims
as they are, not as they were at the time the acts giving rise to

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                               - 5 -                       No. 179

the crime were committed.   There is no pregnant mother exception
from criminal liability for reckless acts that result in the
death of a mother’s baby postpartum.   Indeed, Penal Law § 125.15
(1) does not require that the reckless conduct contemplated
therein have occurred while the victim was a person, and the
definition of “recklessly” provided in section 15.05 (3)
contemplates that a present act yielding a future result will
come within its ambit.4
          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.
          “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

     4
          My conclusion does not defy the rule of lenity given my
view that only one construction of the relevant statutes is
plausible (see People v Golb, 23 NY3d 455, 456 [2014], cert
denied 135 S Ct 1009 [2015] [“(i)f two constructions of a
criminal statute are plausible, the one more favorable to the
defendant should be adopted in accordance with the rule of
lenity”] [internal quotation marks omitted]). Similarly, my
conclusion does not breach the principle articulated in Judge
Jones’s concurrence in People v Valencia (14 NY3d 927 [2010])
“ ‘that the physical conduct and the state of mind must
concur,’ ” and “ ‘that there is concurrence when the defendant’s
mental state actuates the physical conduct’ ” (id. at 933-934
[Jones, J., concurring], quoting LaFave, Substantive Criminal Law
§ 6.3 [a], at 451 [2d ed] [footnotes omitted]) because here
defendant’s actions and her state of mind were one.

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          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 2 1/2 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 76 NY2d 1021 [1990]), wherein the
Appellate Division applied the “born alive” rule.   That rule
provides that “a person [cannot] be convicted of an offense
involving homicide unless the victim, including a child whose
death was the result of prenatal injuries, was first born alive”
(id. at 77; see People v Hayner, 300 NY 171, 174 [1949]
[enunciating the “born alive” rule]).    In Hall the defendant had
shot a pregnant woman in the abdomen, which caused that woman to
give birth by cesarean section to a baby who lived for 36 hours
before dying “from a series of [injuries] attributed to
prematurity and oxygen deprivation” (Hall, 158 AD2d at 71).
Based on those circumstances the defendant was convicted of,


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                                - 7 -                      No. 179

inter alia, manslaughter in the second degree (see id. at 72),
and the Appellate Division affirmed that judgment of conviction,
essentially reasoning that because the baby had been born alive,
it constituted a “person” within the meaning of Penal Law §§
125.05 (1) and 125.15 (see Hall, 158 AD2d at 73-77).
          Hardy and Hall are factually different from this case
in that the perpetrator in each of those matters was not the
mother of the deceased child.   The instant statutes, however, do
not draw a distinction between violence perpetrated against an
“unborn child” (Penal Law § 125.00) later born alive by that
child’s mother and violence perpetrated against the same child by
a third party (cf. majority op., at 6).
          I appreciate that my conclusion could promote the
obtuse scenario of encouraging one situated similarly to
defendant to allow her unborn child to die within her following
like misconduct.   Indeed, here, had defendant avoided a cesarean
section following the collision and the death occurred in utero,
she could not have been charged with manslaughter in the second
degree, which is a class C felony (Penal Law § 125.15), for the
simple reason that the “person” element of that crime could not
have been met (see § 125.05 [1]).   Had that scenario come to
pass, defendant conceivably could have been charged with the
class E felony of abortion in the second degree (§ 125.40) or the
class D felony of abortion in the first degree (§ 125.45), but
both of those crimes have an intent element that would likely


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                                 - 8 -                             No. 179

have been impossible to prove in the context of this automobile
accident.   That hypothetical point notwithstanding, “a
perpetrator of illegal conduct takes his [or her] victims as he
[or she] finds them” (Hall, 158 AD2d at 79).         The statutory
scheme in question reflects a legislative prerogative that we
have no legal basis to modify.
            Here it is beyond dispute that the baby was born alive
following the collision but died six days later as a result of
injuries caused by the reckless conduct of her mother.         Through
Penal Law article 125 and, more particularly, Penal Law § 125.15
(1), the legislature consciously chose to place events such as
these in the class of circumstances that may constitute
manslaughter in the second degree.       Based on those plain
provisions of the Penal Law, I conclude that the baby was a
person in the eyes of the Penal Law, that the mother can be held
accountable under section 125.15 (1) for the baby’s death, and
that the Appellate Division’s order should be affirmed.
*   *   *    *   *   *   *   *    *      *   *   *     *   *   *     *   *
Order reversed and the remaining count in the indictment
dismissed. Opinion by Judge Pigott. Chief Judge Lippman and
Judges Rivera, Abdus-Salaam and Stein concur. Judge Fahey
dissents and votes to affirm in an opinion.

Decided October 22, 2015




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