        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

345
KA 11-00691
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID L. HARDY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 21, 2011. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the
second degree, assault in the second degree, assault in the third
degree and attempted petit larceny.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, manslaughter in the second degree (Penal Law §
125.15 [1]), defendant contends that the evidence is not legally
sufficient to establish that the victim of the manslaughter was a
person within the meaning of article 125 of the Penal Law (see §
125.05 [1]). Defendant’s conviction arose from an incident that began
when he fled the scene of an attempted petit larceny. During that
flight, his vehicle crossed the center line, 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. The pediatrician who delivered the
child did not detect breathing or a heartbeat immediately after the
cesarean section, but the child was resuscitated, and she had a
heartbeat of between 60 and 80 beats per minute at five minutes after
birth. Based on the child’s high risk of cognitive and neurological
deficits, the parents and the pediatrician determined that
resuscitative efforts should cease, and removed the child from
mechanical life support. The child’s heart beat for about 2½ hours
before she died.

     Contrary to defendant’s contention, we conclude that the evidence
of the child’s personhood is legally sufficient to support the
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                                                         KA 11-00691

conviction (see generally People v Danielson, 9 NY3d 342, 349; People
v Bleakley, 69 NY2d 490, 495). The Penal Law provides that a
defendant “is guilty of manslaughter in the second degree when . . .
[he or she] recklessly causes the death of another person” (§ 125.15
[1]). Furthermore, “ ‘[p]erson,’ when referring to the victim of a
homicide, means a human being who has been born and is alive” (§
125.05 [1]), and the Penal Law defines homicide as “conduct which
causes the death of a person or an unborn child with which a female
has been pregnant for more than twenty-four weeks” (§ 125.00).

     Defendant first contends that the evidence is not legally
sufficient because, pursuant to the above statutory scheme, a child
who is less than 24 weeks of gestational age is not a person. That
contention is without merit. Penal Law § 125.00 uses the disjunctive
“or” in defining who may be the victim of a homicide, and it is a
well-settled rule of statutory interpretation that “[u]se of the
conjunction ‘or’ in a statute usually indicates that the language is
to be construed in an alternative sense” (McKinney’s Cons Laws of NY,
Book 1, Statutes § 235; see McSweeney v Bazinet, 269 App Div 213, 216,
affd 295 NY 797; People v Cubiotti, 4 Misc 2d 44, 46). Therefore, a
victim who is born alive may be a person for the purposes of a
homicide pursuant to section 125.00, regardless of whether he or she
is less than 24 weeks of gestational age.

     Defendant next contends that the evidence is not legally
sufficient because the child was not born alive as required by the
definition of “person” (Penal Law § 125.05). As a preliminary matter,
we note that defendant did not raise that contention in support of his
motion for a trial order of dismissal (see generally People v Gray, 86
NY2d 10, 19). Indeed, in his argument in support of his motion,
defendant conceded that the child had been born alive, but advanced a
different challenge to the child’s personhood. We nevertheless
conclude that “the trial court, in response to defendant’s [motion],
‘expressly decided the question raised on appeal,’ thus preserving the
issue for review” (People v Smith, 22 NY3d 462, 465). In any event,
that contention is also without merit. A “child was born alive in the
legal sense [if it] had been wholly expelled from its mother’s body
and possessed or was capable of an existence by means of a circulation
independent of [the mother’s] . . . The true test of separate
existence in the theory of the law (whatever it may be in medical
science) is the answer to the question whether the child is carrying
on its being without the help of the mother’s circulation” (People v
Hayner, 300 NY 171, 174 [internal quotation marks omitted]). Here,
although the child’s breathing was sustained by mechanical means for a
short time after the cesarean section was performed, she was removed
from mechanical life support and survived on her own without medical
assistance for approximately 2½ hours. Thus, for that period of time
she carried “on [her] being without the help of [her] mother’s
circulation” (id.).

     Defendant further contends that the evidence is legally
insufficient because any injury he may have inflicted on the child
occurred before her birth, i.e., when she was not yet a “person”
within the meaning of Penal Law § 125.05 (1). We reject that
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                                                         KA 11-00691

contention. To the contrary, we conclude that the evidence was
legally sufficient to establish that element of manslaughter in the
second degree, inasmuch as the child “was a ‘person’ from the moment
of her birth . . . , notwithstanding that defendant may have
perpetrated the act that caused the injury prior to her birth” (People
v Hayat, 235 AD2d 287, 287, lv denied 89 NY2d 1036; see People v Hall,
158 AD2d 69, 72-80, lv denied 76 NY2d 940, reconsideration denied 76
NY2d 1021).

     Finally, defendant contends that the evidence is legally
insufficient because the child would likely have died from
complications arising from her premature birth, and thus he should not
be held responsible for her death. That challenge is unavailing
because the evidence establishes that the injuries that defendant
recklessly inflicted were significant factors in causing the child’s
premature birth and, eventually, her death. Thus, “defendant may not
avoid responsibility by arguing that other causes contributed since
his acts were also factors in the [child]’s demise” (People v
Cicchetti, 44 NY2d 803, 804-805). Indeed, “[i]t has long been held
that criminal liability for death resulting from a felonious assault
is not relieved by such contributing factors as a victim’s
pre-existing health condition” (People v Bowie, 200 AD2d 511, 512, lv
denied 83 NY2d 869; see generally People v Griffin, 80 NY2d 723, 726-
727, cert denied 510 US 821). In light of the People’s evidence that
defendant’s actions were a “sufficiently direct cause of the [child’s]
ensuing death” (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d
741), we conclude that it would be impermissible to allow a jury “to
speculate on the [child’s] chance of survival” outside of that context
of direct causation (People v Knapp, 113 AD2d 154, 166, cert denied
479 US 844).

     Thus, we reject defendant’s challenge to the sufficiency of the
evidence, and we conclude that there is a “valid line of reasoning and
permissible inferences from which a rational jury could have found the
elements of the crime proved beyond a reasonable doubt” (Danielson, 9
NY3d at 349 [internal quotation marks omitted]; see generally
Bleakley, 69 NY2d at 495).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
