The People, Respondent,v.Jennifer Jorgensen, Appellant.BriefN.Y.September 8, 2015ToRe Argued By: KARLALATO Time Requested: Twenty Minutes COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------J( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- JENNIFER JORGENSEN, Defendant-Appellant. ------------------------------------------------------------------J( BRIEF OF RESPONDENT APL-2014-00208 App. Div. Case No. 2012-05826 Suffolk Co. Indictment No. 1425/09, 1099110 THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Respondent Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 KARLALATO Assistant District Attorney Of Counsel TABLE OF CONTENTS Page Table of Authorities i Preliminary Statement 1 Issues Presented 3 . Statement of Facts 4 Pretrial Motion 4 The People's Case 4 A. The Crash and Hospital 4 B. History of Jorgensen's pregnancy and the post- death investigation 13 Defense Case 19 The People's Rebuttal 21 Verdict and Sentence 21 Point One 22 JORGENSEN CAN BE GUILTY OF RECKLESS MANSLAUGHTER WITH REGARD TO THE DEATH OF HER BABY. Point Two 30 THE EVIDENCE PRESENTED LEGALLY SUFFICIENT JORGENSEN'S CONVICTION. AT TRIAL WAS TO SUPPORT TABLE OF CONTENTS (continued) Page A. Jorgensen's legal sufficiency claim is not preserved for review 30 B. Standard for assessing sufficiency of the evidence 3! C. The evidence was legally sufficient to establish that Jorgensen's reckless conduct caused the baby's death 32 1. Ran a red light.. 34 2. Talking on cellphone while driving 34 3. Not wearing a seat belt 34 4. Evidence ofprescription drug use 35 5. Alcohol and prescription drug ingestion 36 6. Speeding on wrong side of road 37 7. Failure to correct or break 37 8. Injuries from crash caused baby's death 38 Point Three 43 THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ADMITTED EVIDENCE OF JORGENSEN'S PRESCRIPTION DRUG USAGE. JORGENSEN WAS NOT DENIED HER RIGHT TO A FAIR TRIAL. A. Preservation 43 B. Standard of review for assessing admissibility of evidence 44 C. The probative value of the evidence outweighed any prejudice 44 Point Four 50 THE PROSECUTOR'S SUMMATION WAS PROPER AND DID VIOLATE JORGENSEN'S RIGHT TO A FAIR TRIAL. TABLE OF CONTENTS (continued) Page A. Jorgensen's summation claim is largely unpreserved 51 B. Standard for reviewing propriety of prosecutor's summation 52 C. The prosecutor's summation was proper 53 Point Five 61 THIS COURT IS PRECLUDED FROM REVIEWING TIlE IMPOSED SENTENCE. Conclusion 65 Certification 66 TABLE OF AUTHORITIES Page Federal Cases Jackson v Virginia, 443 U.S. 307 (1979) 31 Roe v Wade, 410 U.S. 113 (1973) 26,27 State Cases Endresz v Friedberg, 24 NY2d 478 (1969) 27 Matter ofGloria C v William C, 124 Mise2d 313 (Fam Ct 1984) 27, 28 Matter ofUnborn Child, 179 Mise 2d 1 (Fam Ct 1998) 27 People v Arafet, 13 NY3d 460 (2009) 48 People v Asaro, 21 NY3d 677 (2013) 33 People v Ashwal, 39 NY2d 105 (1976) 52 People v Boutin, 75 NY2d 692 (1990) 34 People v Brown, 97 NY2d 500 (2002) 44 People v Cintron, 95 NY2d 329 (2000) 31 People v Cona, 49 NY2d 26 (1979) 61 People v Contes, 60 NY2d 620 (1983) 31 People v Crimmins, 36 NY2d 230 (1975) 48 TABLE OF AUTHORITIES (continued) Page People v Danielson, 9 NY3d 342 (2007) 32,40 People v DeLee, 2014 NY Slip Op 08212 (2014) 42 People v Finnegan, 85 NY2d 53 (1995) 22 People v Galloway, 54 NY2d 396 (1981) 60 People v Givens, 268 AD2d 240 (1st Dept 2000) 36 People v Gonzalez, 83 AD3d 1093 (2d Dept 2011) 51 People v Gray, 86 NY2d 10 (1995) 51 People v Hall, 158 AD2d 69 (1st Dept 1990) : 23 People v Halm, 81 NY2d 819 (1993) , 52,53 People v Hardy, 30 Misc3d 967 (Sup Ct 2011) 23, 40 People v Harris, 98 NY2d 452(2002) 51 People v Hines, 97 NY2d 56 (2001) 31 People v Horne, 97 NY2d 404 (2002) 41 People v Hurley, 75 NY2d 887 (1990) 62 People v Jorgensen, 113 AD3d 793 (2d Dept 2014) passim . ii TABLE OF AUTHORITIES (continued) Page People v Jorgensen, 23 NY3d 1063 (2014) 2 People v LaValle, 3 NY3d 88 (2004) 51 People v Lemon, 62 NY2d 745 (1984) 62 People v Lewis, 69 NY2d 321 (1987) 44 People v Licitra, 47 NY2d 554 (1979) 40 People v Malizia, 62 NY2d 755 (1984) 32 People v Mendez, 34 AD3d 697 (2d Dept 2006) 31 People v Miller, 286 AD2d 981 (4th Dept 2001) 33 People v Montanez, 41 NY2d 53 (1976) 41 People v Morales, 168 AD2d 85 (2dDept 1991) 60 People v Muhammad, 17 NY3d 532 (2011) 41, 42 People v Nieves, 2 NY3d 310 (2004) 61 People v Poliakov, 167 AD2d 115 (1st Dept 1990) 33 People v Quinto, 77 AD3d 76 (2d Dept 2010) 22 People v Romero, 7 NY3d 911 (2006) 51 People v Rossey, 89 NY2d 970 (1997) 31 . iii TABLE OF AUTHORITIES (continued) Page People v Samms, 95 NY2d 52 (2000) 64 People v Scarola, 71 NY2d 769 (1988) 44 People v Scoon, 303 AD2d 525 (2d Dept 2003) 52 People v Tardbania, 72 NY2d 852 (1988) 52 People v Tejeda, 73 NY2d 958 (1989) 31 People v Tonge, 93 NY2d 838 (1999) 52,60 People v Williams, 19 NY3d 100 (2012) 22 People v Williams, 253 AD2d 445 (2d Dept 1998) , 33 People v Tucker, 55 NY 1 (1981) 41 Roballo v Smith, 63 NY2d 485 (1984) 23 Tompkins v Hunter, 149 NY 117 (1896) 23 Woods v Lancet, 303 NY 349 (1951) 27 Federal Statutes 18 USCA §1841 25 State Statutes Civil Practice Law and Rules §4511 26 Criminal Procedure Law §440.20 61,64 Criminal Procedure Law §470.05 45,52 iv TABLE OF AUTHORITIES (continued) Page Criminal Procedure Law § 470.05(2) 61,62 Penal Law §125.15 22 Penal Law §125.00 23 Penal Law §125.05(1) 23 Penal Law §125.15(1) 32 Penal Law §125.40 27 Penal Law §15.05(3) 32 Public Health Law § 4164 24 Vehicle and Traffic Law §1192 44 . v COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- JENNIFER JORGENSEN, Defendant-Appellant. ------------------------------------------------------------------)( APL-2014-00208 App. Div. Case No. 2012-05826 Suffolk Co. Indictment No. 1425/09,1099/10 PRELIMINARY STATEMENT Under Suffolk County Indictment Numbers 1425-2009 and 1099-2010, defendant Jorgensen was charged with aggravated vehicular homicide, three counts of manslaughter in the second degree, and operating a motor vehicle while under the combined influence of drugs and alcohol. After a jury trial, Jorgensen was convicted of one count of manslaughter in the second degree for the death of her infant, Baby _. Jorgensen was sentenced to an indeterminate term of incarceration of three to nine years. Imposition of the sentence was initially stayed by the Appellate Division and, again, by this Court. There were no co-defendants. On January 22, 2014, the Appellate Division, Second Department affirmed the conviction. People v Jorgensen, 113 AD3d 793 (2d Dept 2014). Defendant sought leave to appeal to the-Court of Appeals. On August 5, 2014, after oral argument by the parties, Judge Smith granted leave to appeal. People v Jorgensen, 23 NY3d 1063 (2014). 2 ISSUES PRESEN'FED 1: Penal Law §125 includes as a victim an unborn fetus with a gestiona1 age of 24 weeks who is born alive. The homicide statues do not exclude a pregnant woman or mother from crimina11iability. Can a mother be liable for the death of her baby when the mother's reckless acts result in injuries to her viable fetus and the baby, after birth, dies from those injuries? 2: Was the evidence presented at trial legally sufficient to support Jorgensen's conviction of manslaughter in the second degree where the jury showed leniency in acquitting Jorgensen of the death of two other victims? 3: Did the trial court properly exercise its discretion when it permitted the introduction of evidence of Jorgenen's prescription drug use when the evidence was relevant to prove the People's case or defense counsel opened the door to its' introduction? 4: Were the prosecutor's comments made during summation, which amounted to fair comment on the evidence, permissive comment, or were responsive to defense counsel's comments, proper in light of the prompt curative instructions given by the court or, in any event, were they harmless in light of the overwhelming evidence of Jorgensen's guilt? 5: Can this Court deny consideration of a transcript from an unrelated case which is de hors the record where the trial court imposed a legal sentence and the legality of the sentence is supported by the record? 3 STATEMENT OF FACTS Pretrial Motion The People submitted a motion in limine for permission to use Jorgensen's use of the prescription drugs Clonazepam and Alprazolam for seven months prior to the crash. The court ultimately determined that Jorgensen's prescription history of Clonazepam was relevant to the findings of Clonazepam in her blood and the synergistic effect of the medication and alcohol (Tr 414-16)1. It also ruled that the prosecutor was prohibited from presenting any evidence that Jorgensen was prescribed Alprazolam because there was no evidence that the drug or its metabolites were in Jorgensen's blood at the time of the crash (Tr 414). When the defense expert testified about how a patient can build a tolerance to clonazepam (Tr 1819), the court modified its ruling, finding that the defense opened the door to tolerance and permitted the prosecutor to introduce evidence of Jorgensen's use ofAlprazolam (Tr 1833). The People's Case A. The Crash and Hospital On May 30, 2008 Janet Neves was at the intersection of Whiskey Road and Route 21, in Ridge, New York, waiting to turn on toWhiskey Road. When the traffic light turned green in her direction, Neves saw a speeding blue car traveling 1 Numbers following the letter "Tr" refer to the pages referenced in appellant's supplemental appendix. 4 on Whiskey Road go through the intersection against what she assumed was a red light (Tr 160-63, 185). After the blue car passed, Neves made her tum onto Whiskey Road. Neves did not see any car follow the blue car when she made her tum (Tr 163). About a mile down Whiskey Road, Neves came upon a head-on collision involving two cars, blocking the road. The cars involved were blue and red (Tr 164). The blue car was the same size and color as the car that Neves had seen speed through the nearest intersection (Tr 105, 164). Neves stopped, got out of her car, and saw two older people in the red car who appeared to be passed out. There was a woman in the small blue car who had a bone sticking out ofher arm (Tr 165- 66). Neves called 911 for help, although she did not remember doing so (Tr 168). Neves reached through the partially open driver's window of the blue car and scratched Jorgensen's head and reassured her that she would be okay since help was coming (Tr 166). Jorgensen told Neves that she was seven months pregnant (Tr 167). Several other people who either heard the crash or came upon the scene also called 911 (Tr 47-8, 1346-47, 1357). One of the bystanders, Scott Peterson, approached the red car and told the female passenger, Mrs. Kelly, "relax, don't move, and help is on the way" (Tr 1350-52). Mrs. Kelly was very concerned about her husband who was unresponsive in the driver's seat (Tr 1352). 5 When Police Officer Susan Cataldo arrived at the scene, she saw two cars, one red and one blue, each with severe front-end damage (Tr 82). Parts of the cars and fluids littered the roadway (Tr 82). The air had the distinct smell associated with the deployment of airbags (Tr 82). Officer Cataldo called for emergency services, backup, and a helicopter to standby (Tr 82-83). Because there was one EMT already on the scene who was assisting the passenger in the red car (Tr 83), Officer Cataldo went to the driver's side of the red vehicle (Tr 83-84). She observed a man slumped over the steering wheel, unconscious and nonresponsive (Tr 84). She then went to see the passenger, who was in and out of consciousness (Tr 84). Officer Cataldo then went to Jorgensen's vehicle, where she was told by Neves that Jorgensen was pregnant (Tr 84). Officer Cataldo returned to the driver of the red vehicle, who was still unresponsive. She checked his pulse. There was none. Upon determining that there was a fatality, Officer Cataldo requested that detectives respond to the scene (Tr 86). First Assistant Chief Timothy Timms, of the Coram Fire Department, who is also a certified Emergency Medical Technician, came upon the crash (Tr 224-25). Timms went to the driver's side of the red car and observed an elderly gentleman. Mr. Kelly, in the driver's seat. He checked for a carotid pulse in the driver, which was absent. The driver's wife was sitting next to the driver petting him and asking Timms to help him (Tr 226). Timms went over to the female passenger, Mary . 6 Kelly, who told him she had lower back pain and also had an obvious deformity to her right arm. Mrs. Kelly told Timms that even though her husband tried to get out of the way, the other car ran into them (Tr 227). Timms went to check on the occupant of the blue car, fmding Jorgensen to be unconscious (Tr 227-28). Jorgensen's vehicle was full of what appeared to be toys and children's stuff. Although the window was slightly opened, Timms could not get inside the car. He removed his sweatshirt and put in in the window to protect Jorgensen from glass which he broke with a pair of pliers. When he attempted to check Jorgensen's pulse, she regained consciousness and asked him to get her out of the car because she was stuck (Tr 228). When Timms asked Jorgensen was asked ifthere was a child in the car, she responded that there was no child, but stated that she was pregnant (Tr 228-29). Jorgensen was pregnant with her second child (Tr 76). Michael Saltares, a member of the Ridge Fire Department and an EMT, responded to the accident scene in a box ambulance (Tr 311-12). Upon his arrival, Saltares was directed to aid Jorgensen. He attempted to open the driver's side door, but could not (Tr 312). He went to the passenger side and, after removing items from the car, entered the vehicle. Jorgensen was awake and conscious at this point. Jorgensen complained that she had belly pain and that she was concerned with her face. The injury to Jorgensen's face was described as a cut above her right eye that . 7 was bleeding (Tr 314). Saltares was able to control the bleeding and clean the blood off Jorgensen's face (Tr 314-15). Her right arm near her wrist was deformed and was stabilized to prevent further injury. Saltares saw that Jorgensen was not wearing her seatbelt, and Jorgensen confirmed that was correct. He did not smell alcohol on appellant (Tr 315). Saltares noticed the car contained children's clothing and a car seat (Tr 316). Jorgensen who was semiconscious and was not really answering questions, became panicked because she wanted to exit the vehicle, blurted out that "she'd be a good girl, she wouldn't do this anymore." When she was asked what that meant, Jorgensen did not answer (Tr 318-19). Louis Brand, an Emergency Medical Technician from the Ridge Fire Department, also responded to the crash scene (Tr 240-243). Brand initially approached Jorgensen's vehicle, but was told to help the other EMT and was directed to the Kellys' vehicle where he assisted with the treatment of Mrs. Kelly (Tr 244-55). Mrs. Kelly was conscious, speaking, and in pain. She was holding her deceased husband's hand, and had to be told numerous times to let go of her husband when she was being removed from the car. She was removed from the car after the door was removed (Tr 248). Mrs. Kelly was taken by ambulance to the hospital (Tr 87, 249). According to Brand, the airbags in the Kellys' car had deployed, which had 8 released a fine powder into the air (Tr 246-47} Brand, who had responded to hundreds of emergency calls, described the smell of the activated airbags as "overwhelming" (Tr 240-42). Jorgensen was extricated from her vehicle and placed in an ambulance (Tr 321). She never asked about her baby, and instead only asked about her face (Tr 322). She was brought by ambulance to a waiting helicopter and was flown to Stony Brook Hospital (Tr 87). Detective Baillard and Suffolk County Police Officers John Gannon and John White responded to the crash area (Tr 262, 266-67, 690). The cars were photographed inside and out; a fresh gouge in the roadway was also photographed (Tr 268-69, 272). Jorgensen's cellphone was retrieved from the driver's foot well of her car. There was a filled prescription container of Clonazepam in the open console of Jorgensen's vehicle (Tr 276,280,691-92). Clonazepam is a long acting benzodiazepine prescribed to treat panic attacks, anxiety, and seizure or nerve disorders (Tr 436-37). The container had the warning, "May cause drowsiness. Alcohol may intensify this affect" and advised "Use care when operating a car or dangerous machine" (Tr 1376). Cell phone records showed that Jorgensen was on her cellphone with her future father-in-law for four minutes, beginning at 2:45 PM. (Tr 69-71, 144). At .9 2:49 PM, the police received a 911 call of a two car crash on Whiskey Road (Tr 81). Detective Baillard went to Stony Brook Hospital. (Tr 695). He arrived at approximately 4:45 PM, but was unable to interview Mary Kelly because she had gone into cardiac arrest (Tr 696)2. He also could not interview Jorgensen because she was in surgery (Tr 696). While he waited, Baillard was given an empty bottle of Clonazepam that had been found in Jorgensen's purse (Tr 699-701, 1370). He also had the hospital retain 2 cc of Jorgensen's blood which had been drawn upon her arrival in the emergency room (Tr 698, 952). Baillard contacted the Suffolk County District Attorney's Office to find out if a blood warrant could be obtained (Tr 696). The blood warrant was obtained, but he had to wait for the hospital to give them clearance to draw the blood (Tr 702). After permission was given by the hospital at 11 :15 P.M., blood was taken from Jorgensen (Tr 703). When Jorgensen arrived at the hospital at 3:40 PM, she was deemed to be in critical condition because she was an unrestrained driver who was involved in a car accident and was thirty-seven weeks pregnant (Tr 951-52). She had what appeared to be bruising underneath her breasts and across her chest and her abdomen was firm, which typically indicates that an individual has internal bleeding (Tr 952, 2 Mary Kelly subsequently died from her injuries. 10 967). Jorgensen was taken to get a CAT scan at 4:00 PM to determine the extent of her injuries (Tr 958). The baby's heartrate was monitored prior to going for the scan and was in normal limits (Tr 958-59). While Nurse Tlockowski was preparing appellant for a CAT scan, she leaned over appellant to hook her to the monitor (Tr 960). Tlockowski, who leaned right over appellant's face, smelled what appeared to be alcohol on her breath (Tr 960-61). Tlockowski should have made a notation on the chart noting alcohol on Jorgensen's 's breath but neglected to do so (Tr 973). After Jorgensen was transferred to the CAT scan table, the fetal heartrate was checked again and it was determined that the baby was in distress (Tr 959). A decision was made to take Jorgensen to the operating room immediately for an emergency caesarean section (Tr 359-60). During this time, Jorgensen only asked about whether her teeth were broken; in fact, she never inquired about the condition ofthe baby (Tr 960). At about 4:30 PM, Baby _ was born (Tr 636). Baby _ had no heart rate at birth, and was intubated to assist in her breathing (Tr 636). She was also given medication to stimulate her heart and a line was inserted into her umbilical cord to administer medications (Tr 636). Once Baby _recovered her heart rate and was stabilized, she was transported to the Neonatal Intensive Care Unit (Tr 637). 11 At the Neonatal Intensive Care Unit, Jorgensen's daughter was placed on a ventilator (Tr 637). Baby _'s condition was extremely critical (Tr 604), with some respiratory and renal difficulty, and neurological symptoms (Tr 606). She showed evidence ofkidney, liver, and brain damage (Tr 606). Blood was also drawn from Baby _ for various tests at 5:30 PM (Tr 637- 39). Some of this blood was retained at the request of the District Attorney's Office and was picked up by Detective Baillard on June 2, 2008 pursuant to a search warrant (Tr 814). Baby _'s urine analysis came up positive for alcohol (Tr 610). Blood taken from Baby _ on May 30, 2008, was received by the hospital lab at 7:01 PM (Tr 794). After a small amount of plasma was taken for a test, the remaining plasma and red cells were put into a Ziploc bag and held for pick up by the District Attorney's Office (Tr 799,801). A sample in a test tube with a red top was obtained in the Emergency Department from Jorgensen on May 30,2008, at 3:44 PM (Tr 802-03). Since the red topped tube was an extra, it was sent to the chemistry lab to be stored (Tr 804). The tube was spun down on the centrifuge to separate the serum from the cells (Tr 805). Like the sample of Baby _'s blood, the tube was requested by the District Attorney's Office, so it was placed in the chemistry refrigerator (Tr 813). The requested samples were picked up by Detective Baillard (Tr 814). Baby _ died six days after her birth (Tr 1605). Her body and blood 12 samples were transported to the Suffolk County. Medical Examiner's Office (Tr 660-62). An autopsy was performed on the infant (Tr 1395, 1405). The internal examination revealed that there was hypoxic encephalopathy, which is a change of the brain that occurs when there's not enough blood flowing to the brain (Tr 1408). Her cause of death, to a reasonable degree of medical certainty, was a result of prematurity and hypoxic encephalopathy due to placental abruption caused by blunt force trauma to the mother (Tr 1428). The Suffolk County Medical Examiner's Office also performed autopsies on Robert and Mary Kelly (Tr 1394-95, 1431-32). The cause of death of Robert Kelly, to a reasonable degree of medical certainty, was that Mr. Kelly died as a result of blunt impact injury of the torso with fractures of the rib and laceration of the aorta (Tr 1404). To a reasonable degree of medical certainty, Mary Kelly, who passed away on June 26, 2008 (Tr 1430), died as a result of complications of blunt impact injuries of the head, torso, and extremities (Tr 1428). The complications included low blood pressure, cardiac arrest leading to hypoxic injury, and the development of bronchial pneumonia (Tr 1428). B. History of Jorgensen's pregnancy and the post-death investigation Dr. John Petraco, an OB/GYN, treated Jorgensen during her pregnancy with Baby _ (Tr 504-05, 510). He customarily counseled his patients to avoid drinking any alcoholic beverages (Tr 511), and discussed the risks of medications a 13 patient might be taking (Tr 512,542). He advised his patients whenever they were in a car to wear a seatbelt whether they were driving or riding as a passenger (Tr 512-13). When Jorgensen first saw Dr. Petraco in November 2007, she never reported to Dr. Petraco that she was taking Clonazepam (Tr 539). Dr. Petraco testified that Clonazeparn is a class "D" risk factor drug (Tr 543), which, if taken during pregnancy, could cause breathing problems in infants (Tr 542, 545). There has to be a pretty extreme medical reason to use a class "D" drug during pregnancy to justify the potential risk to the fetus (Tr 546). Dr. Petraco stated that Jorgensen's pregnancy "wasn't a very high risk" (Tr 514). Dr. Petraco explained that a placental abruption is a condition whereby the placenta will either partially or completely prematurely separate from the wall of the uterus before the baby is born (Tr 533). If the placenta separates before delivery, it can compromise the ability of the oxygen-nutrient transfer between the mother and child (Tr 533). A doctor would be concerned about a placental abruption after a motor vehicle crash involving a pregnant woman (Tr 534), especially if a pregnant person is unrestrained (Tr 535). In a complete abruption after a crash, a baby would be deprived of oxygen and could die or have serious neurologic complications, including brain damage and organ failure (Tr 536). Jorgensen called Dr. Petraco's office on May 30, 2008, and requested an 14 early induction of labor for the date of June 30, 2008. She did not complain of any problems (Tr 530). Jorgensen filled prescriptions for Clonazepam and Alprazolam at CVS, Rite- Aid, Echo Pharmacy, and Quality Pharmacy between November 2007, and May 2008 (Tr 410-16, 1322-34, 1830-33, 1947-49, and 2167-69). Clonazepam, a long lasting benzodiazepine, is used for panic attacks, anxiety, epilepsy or seizure activity, and some nerve disorders (Tr 436). The drug's effect could last from eight to ten hours (Tr 437). An information receipt normally given to the patient at the time a prescription is filled listed some ofthe drug's side effects as drowsiness, dizziness, confusion, and behavior problems. It also warned of not mixing the drug with alcohol because this could intensify drowsiness (Tr 446). Additionally, two warning stickers were on the medication containers: one warned of drowsiness which could be intensified if combined with alcohol, and the other warned caution when operating a car (Tr 1375-76). The Suffolk County Medical Examiner's Office Toxicology Lab conducted blood analysis on samples from Baby _ and appellant. Blood taken from Baby two hours after her birth tested positive for ethanol with a reading of 0.03% (Tr 871, 1243), indicating the presence of alcohol in her system (Tr 584). The blood sample taken from Jorgensen upon arrival at the hospital indicated 0.06 % ethanol (Tr 1039, 1242) and a low level of the drug Clonazepam 15 (Tr 1136, 1243). No alcohol was detected in the blood sample taken from appellant nine hours after the accident pursuant to the blood warrant (Tr 1119, 1241). The drug screening of that sample indicated the presence of Clonazepam at a low therapeutic level (Tr 1122, 1241). Toxicologist Lori Arendt opined that since Clonazepam is very effective at low dosages (Tr 1140), it would be reasonable that there would be some effect from the drug at this level. The side effects of alcohol are similar to Clonazepam, because it is also a central nervous system depressant and acts on the brain the same way. They each induce drowsiness, confusion, unsteadiness on ones feet, loss of fine motor skills, and an increase in decision and reaction time (Tr 1145). Clonazepam interacts with alcohol by enhancing any effects that alcohol has on a person. The total effect from the combination of alcohol and Clonazepam would be greater than the sum of the individual impairments. If one considers the level of alcohol, along with the level of Clonazepam, it would be reasonable to believe that there would be some degree of impairment. In determining the degree of impairment, one would have to observe an individual's actions, including the manner and speed that they were operating a motor vehicle (Tr 1146). Running a red light, speeding, and driving in the wrong lane could be factors in deciding whether or not someone is impaired (Tr 1147). Arendt opined that if a person were speeding, running a red light, driving in .16 the wrong lane, never hitting the brakes, and-accelerating towards another car, these would be important factors to consider in determining whether they were impaired (Tr 1148). Michael Katz, the Assistant to the Chief Toxicologist at the Suffolk County Medical Examiner's Office Toxicology Lab, reviewed appellant's medical records (Tr 1233, 1261). He noted her weight at the time of the crash and opined that it would take the consumption of a minimum of three alcoholic drinks within an hour of the crash for an individual of appellant's weight and gender to reach a .06 blood alcohol content (Tr 1261-62). In Mr. Katz's opinion, the combination of a .06 alcohol, along with the presence of 12.5 milligrams per microliter Clonazepam would cause impairment to some degree (Tr 1263). Alcohol is metabolized in the liver, and it is eliminated at a rate of 0.015 to 0.02 % per hour, or roughly one drink an hour (Tr 1264). It would typically take three to four hours for an individual with 0.06 % alcohol content to metabolize the alcohol (Tr 1264). The hospital tested a urine sample of appellant on the date of the crash at 9:12 P.M., which was six or seven hours after the crash. Katz would not expect to see ethanol in her urine. He would also not expect to find ethanol in the blood that was drawn for appellant at 11:15 P.M. He opined that if an individual had a 0.06 blood alcohol level at 3:44 P.M., he would expect the blood alcohol level to be 17 0.02 or 0.03 two hours later (Tr 1265). Robert Genna, Director of the Suffolk County Crime Lab (Tr 1462), is a specialist ofvehicle crash investigation and reconstruction (Tr 1464). He reviewed crime scene photographs, the measurements taken at the crash, witness statements, and police reports (Tr 1470). Based on the profiles of damage that the two vehicles exhibited; based on the position on the roadway where he positioned the vehicles at the point of impact; and, the gouge mark corresponding to the area and final rest of the vehicles, Mr. Genna determined that appellant's Nissan was traveling the wrong way within the westbound lane when it collided with the victims' Ford. He also believed that after impact, based on the forces and speeds of the two vehicles at the time of the impact, appellant's vehicle pushed the victims' vehicle back. Genna stated that appellant's vehicle had to be traveling at a higher rate of speed in order to push the victims' vehicle back (Tr 1480). Mr. Genna ultimately concluded that appellant's vehicle was traveling at a speed of forty-four to forty-nine miles per hour at the time of impact. He felt that the victims' vehicle was traveling at a rate of speed of between fifteen to twenty miles per hour at the time of impact (Tr 1485). On June 21, 2011, a Nissan master technician, Benjamin Foss, downloaded information from the Event Data Recorder (EDR) in appellant's car (Tr 341-347, 349). The EDR captured vehicular data for seven seconds prior to the crash 18 including vehicle speed and throttle position; acceleration and braking; and seatbelt data (Tr 349). According to the data retrieved by Foss, appellant's vehicle was traveling between 48 and 50 miles per hour before collision (Tr 365). The throttle was twenty percent at the moment of impact; the braking switch status was off; and the seatbelt status was off (Tr 365-366). Defense Case Nancy Kaiser, appellant's fiance's mother, testified that her son and appellant stayed with Nancy at her home the night before the crash (Tr 1757). At no time that night did Kaiser see appellant consume any type of alcoholic beverage (Tr 1758). Retired Suffolk County Police Department Detective Michael Carmody, inspected appellant's car at the Suffolk County Impound Yard and located eight Michael's receipts all dated May 30, 2008 and time stamped between 1:10 P.M. and 1:51 P.M. (Tr 1593-98). Carmody videotaped the direction of travel of appellant from the shopping center to the crash site (Tr 1602). The video was played for the jury (Tr 1609-13). On May 30, 2008, Destiny Martin, Virginia Gordon and Deborah DeRoacher, employees of Michael's Arts and Crafts Store in Rocky Point, assisted Jorgensen (Tr 1667-69). They did not recall Jorgensen acting impaired or smelling of alcohol (Tr 1649-50,1656,1659,1670-71). 19 Lynn Weyant, former Town of Brookhaven Director for the Division of Traffic Safety and Street Lighting (Tr 1684), testified that prior to January 8, 2009, there were no speed limit signs on Whiskey Road (Tr 1686). Frederick Purdy, a flight paramedic for the Suffolk County Police Aviation Unit, cared for Jorgensen in the helicopter that transported her to Stony Brook Hospital (Tr 1687-95). Purdy did not smell alcohol on appellant's breath during the ride to the hospital (Tr 1694). He was told by the ambulance crew that Jorgensen wore her seatbelt (Tr 1695). Dr. Michael Paccione treated appellant in the emergency room (Tr 1724). Her CAT scan revealed a subdural hematoma (Tr 1725). This condition could present symptoms including decreasing mental status and lethargy (Tr 1726). Jorgensen's "Glasgow score" was 14 out of 15, indicating that appellant was slightly disorientated but was awake and alert (Tr 1727). Dr. Robert Middleberg, a practicing forensic toxicologist (Tr 1764-65), reviewed Jorgensen's medical records and lab work from the Suffolk County Medical Examiner's Office Toxicology Lab (Tr 1772). Regarding the blood specimen taken from appellant in the emergency room at 3:44 PM, Dr. Middleberg believed that it lost its integrity in terms of testing for blood alcohol because of the way the specimen was collected, the time that passed, and that a sample seemed to be missing (Tr 1782). .20 Regarding the second specimen, the blood taken from Baby _, he expressed the same opinion, that the sample lacked integrity (Tr 1782-83). He was concerned about Baby _'s elevated blood sugar, because if there had been any bacteria in the sample, it would promote the formation of alcohol (Tr 1786). The People's Rebuttal Dr. Michael Lehrer, the Chief toxicologist at the Suffolk County Medical Examiner's Office Toxicology Lab (Tr 1953-54), testified that the Suffolk County Medical Examiner's Office Toxicology Lab had been inspected four times since 2003 by eight different inspectors and had never failed accreditation (Tr 1961). Verdict and Sentence Appellant was found guilty of one count of Manslaughter in the Second Degree, with regard to Baby _ and was acquitted on the remaining counts (Tr 2233-38). On June 22, 2012, the court sentenced Jorgensen to an indeterminate term of imprisonment of a minimum of three years and a maximum of nine years (Sent. Min. at 40).3 POINT ONE JORGENSEN CAN BE GUILTY OF RECKLESS MANSLAUGHTER WITH REGARD TO THE DEATH 3'Parenthetic numbers preceded by a "Sent. Mins." refer to the pages of appellant's supplemental appendix, Volume IV. 21 OF HER BABY. Jorgensen argues that her conviction for reckless manslaughter should be vacated because her child could not have been a victim of her reckless acts. She argues that just as endangering the welfare of a child does not apply to acts against a fetus, so Penal Law § 125.15 does not apply as well. This contention is meritless. Generally, any person who engages in reckless conduct which results in the death of another is criminally liable for the victim's death. A pregnant woman carrying a viable fetus who engages in reckless conduct, causing injuries to her fetus, and later death from those injuries after a live birth, can be found criminally responsible for the death ofher child. "The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used." People v Williams, 19 NY3d 100, 103 (2012), citing People v Finnegan, 85 NY2d 53, 58 (1995). "If the statutory language chosen by the Legislature is clear and unambiguous, and 'involves no absurdity or contradiction, there is no room for construction and the courts have no right to add or take away from that meaning." People v Quinto, 77 AD3d 76, 82 (2d Dept 2010), quoting Tompkins v Hunter, 149 NY 117, 123 (1896). "The courts should strive to avoid an interpretation of a statute where the literal application of 22 one section will nullify the effect of another ... .'? Roballo v Smith, 63 NY2d 485, 489 (1984). Penal Law §125.00 defines homicide as follows: Homicide means 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 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. Further, the term of"person" as it pertains to the homicide statutes is defined under Penal Law §125.05(1) and reflects that '''Person,' when referring to the victim of a homicide, means a human being who has been born and is alive." Therefore, Baby _, with a gestational age of 34 weeks when she sustained life threatening injuries, who was born and later died from the injuries, was a person under the homicide statute. Indeed, lower courts have recognized criminal liability where a baby who is born alive dies from injuries it sustained in utero. People v Hall, 158 AD2d 69 (1st Dept 1990)(a shooter was criminally liable for the death of a 32 hour old baby when it died from injuries sustained when defendant shot the pregnant woman in the stomach, severing the placenta. Infant was a person because it was born and alive). In People v Hardy, 30 Misc3d 967 (Sup Ct 2011), the defendant was found guilty of manslaughter in the second degree where the defendant recklessly and erratically drove his car over the speed 23 limit, striking another vehicle head on. The driver of the other vehicle was 23- weeks pregnant. As a result of the collision, the female driver suffered a placental abruption requiring a caesarean section. As a result of the accident, the premature infant was found to have sustained deep tissue hemorrhage in the scalp and bleeding around the brain, a result of blunt force trauma. The cause of death to the baby was blunt force trauma and complications from maternal trauma. Jorgensen's argument that she cannot be held liable for recklessly causing the death of her baby who was injured in utero and died from her injuries after birth is not supported by the law. If the legislature intended to exclude mothers from criminal liability under the homicide statute, it could have easily chosen to provide for that in the statute but chose not to do so. The legislature's lack of intent to exclude a pregnant mother from criminal liability for acts against their fetus who is subsequently born alive is also reflected in the Public Health Law § 4164, which provides that any viable birth immediately is given legal protection under the laws of New York, including protection under the social services law, civil rights law, and the penal law. Nowhere in that statute is a mother excluded from liability. It would not be unheard of a statute to exclude a mother from criminal liability for her act against her fetus. For example, the federal Unborn Victims of Violence Act of 2004, 18 USCA §1841 provides for the criminal prosecution of a person who injures or kills a fetus during the commission of a federal crime. The 24 Act specifically excludes the pregnant mother ofthe fetus from prosecution under this Act. 18 USCA §184l( c). Further, there is proposed legislation in New York which would amend the homicide section of the Penal law. Under bill number S2532-20l5, entitled: An Act to Amend the Penal Law, in Relation to the Unborn Victims of Violence Act, not only would the act expand the definition of person to include "an unborn child at any stage of gestation" (Section 5), but it would exclude mothers from prosecution under the homicide statute unless the mother performs a self- abortion. Section 4 ofthe proposed legislation reads: S 125.00 Homicide defined. 1. Homicide means conduct which causes the death of a person or an unborn child ... AT ANY STAGE OF GESTATION under circumstances constituting murder IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, manslaught- er in the first degree, manslaughter in the second degree, VEHICULAR MANSLAUGHTER IN THE FIRST DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE OR criminally negligent homicide, abortion in the first degree or self-abortion in the first degree. 2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSE- CUTION: (A) OF ANY PERSON FOR CONDUCT RELATING TO A mSTIFIABLE ABORTIONAL ACT FOR WHICH THE CONSENT OF THE PREGNANT WOMAN OR A PERSON AUTHORIZED BY LAW TO ACT ON HER BEHALF, HAS BEEN OBTAINED OR FOR WHICH SUCH CONSENT IS IMPLIED BY LAW; .25 (B) OF ANY PERSON FOR ANY MEDICAL TREATMENT OF A PREGNANT WOMAN OR HER UNBORN CHILD; OR (C) OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS ARTICLE. http://open.nysenate.gov/legislation/bill/S2532-20154• (Rl-6)5 Clearly, because the senate sees a need to amend the homicide statute to exclude women like Jorgensen who reckless cause injury to their unborn child resulting in the death of their baby after birth from those injuries, the plain language of the statute currently includes mothers as criminally liable for their actions against their unborn who are born alive. Recognition that a viable fetus is entitled to specific protection is further illustrated by the U. S. Supreme Court's decision in Roe v Wade, 410 U.S. 113 (1973). The Supreme Court stated, "the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ... and that it has ... another important and legitimate interest in protecting the potentiality of human life." Id. at 162. The Court also found that the state has a compelling interest in the life of a third trimester fetus. Id. at 163-65. 4 We ask this Court, pursuant to Civil Practice Law and Rules §45ll, to take judicial notice of the proposed legislation. S "R" followed by a number refers to pages of Respondent's Supplemental Appendix 26 New York State does give the viable fetus certain rights and has an interest in the viable fetus' health and wellbeing. Woods v Lancet, 303 NY 349 (1951) This Court recognized the right of a viable fetus to bring a negligence cause of action for injuries suffered while in utero. An unborn fetus, represented by a guardian, can obtain an order ofprotection pursuant to Family Court Act Article 8. Matter of Gloria C v William C, 124 Misc2d 313 (Fam Ct 1984), This Court stated in Endresz v Friedberg ,24 NY2d 478 (1969),that there is "the legal right of every human being to begin life unimpaired by physical or mental defects resulting from the negligence of another." Id., at 483. In following this reasoning, it is notable that New York, under Penal Law §125.40, has made it a class "D" felony for an abortion to be performed after 24 weeks of pregnancy, unless it is necessary to preserve the life of the mother, again recognizing the state's interest in protecting the life of a third -trimester fetus. In New York, lower courts have opined that a mother could be found liable for criminal acts against her fetus. "Since the common law of this state protects the fetus from negligent acts of a third party, then surely it may be found to encompass protection of the fetus from intentional act by its mother, which acts could cause the child to begin life in an impaired condition" Matter of Unborn Child, 179 Misc 2d 1, 7 (Fam Ct 1998). In Matter of Gloria C v William C, the court reviewed the sections ofthe Penal Law applicable in Jorgensen's case. As we urge .27 here, the court stated, "the legislative intent here is apparent: if the mother is in the third trimester of pregnancy, acts causing the death of the fetus may be prosecuted as homicide." Matter ofGloria C v William C, 124 Mise 2d at 319. In this case, because Baby _ was born alive, she was a person as defined under New York State law. As fully detailed in Point Two of this brief, the prosecutor proved that Jorgensen's acts and mental state supported the charges of manslaughter in the second degree. Just because the jury showed some leniency by acquitting Jorgensen of liability for two of the three deaths that resulted from her reckless driving does not mean that the elements for recklessly causing the deaths was not present. If it had been Mr. Kelly who caused the crash by speeding, driving on the wrong side of the road, failing to break, running a red light and driving his car into Jorgensen's causing injuries to Baby _ who later was born and died from the injuries sustained in utero, Mr. Kelly would be guilty for the death of Baby _. Baby _'s mother should be held equally liable as any other driver whose reckless driving injures a viable fetus who is born and later dies from the injuries sustained in utero. Therefore, since the Penal Law does not specifically exempt a mother from liability for her acts which recklessly. cause the death of baby due to injuries sustained in utero, Jorgensen can be guilty of recklessly causing the death of her child. .28 POINT TWO THE EVIDENCE PRESENTED LEGALLY SUFFICIENT JORGENSEN'S CONVICTION. AT TRIAL WAS TO SUPPORT Jorgensen argues that her conviction of the single count of Manslaughter in the Second Degree should be reversed because there is insufficient evidence to sustain the conviction. Because the jury acquitted Jorgensen of all other counts in the indictment, she argues that her conviction of the death of her baby is based solely upon her failure to wear a seatbelt while pregnant. Failure to wear a seatbelt, Jorgensen argues, cannot serve as a ground for a conviction of Manslaughter in the Second Degree. Contrary to this contention, the Appellate Division determined that the trial evidence, viewed in the light most favorable to the prosecution, "was legally sufficient to establish defendant's guilt beyond a reasonable doubt" and "evidence of defendant's guilt was overwhelming." People v Jorgensen, 113 AD3d at 794. Indeed, applying the requisite deferential standard, there was overwhelming evidence that Jorgensen's reckless actions created a substantial and unjustifiable risk that resulted in Baby _'s death. Moreover, Jorgensen was aware ofthe risk to her baby's life and consciously disregarded it. A. Jorgensen's legal sufficiency claim is not preserved for review. Although the Appellate Division did not reach the preservation argument on this issue, it should be noted that defense counsel's general motion to dismiss at the 29 end of People's case was insufficient to preserve the present contentions. Defense counsel's failure to move to dismiss the case at the end of the defense case waived any challenge to the sufficiency of the evidence, making the claim unpreserved. People v Hines, 97 NY2d 56 (2001); People v Mendez, 34 AD3d 697 (2d Dept 2006). Jorgensen's preservation of the inconsistent verdict issue does not overcome the lack ofpreservation ofthe legal sufficiency of the evidence issue. B. Standard for assessing sufficiency of the evidence As a general rule, the standard for review of the legal sufficiency of evidence in a criminal case is whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v Contes, 60 NY2d 620, 621 (1983), quoting Jackson v Virginia, 443 U.S. 307, 319 (1979). Under this standard, "the People are entitled to the benefit of every reasonable inference to be drawn from the evidence." People v Cintron, 95 NY2d 329, 332 (2000), quoting People v Tejeda, 73 NY2d 958, 960 (1989). This standard is the same for both direct and circumstantial evidence. People v Rossey, 89 NY2d 970, 972 (1997). A reviewing court must view the facts most favorably to the People, who prevailed, and must assume that the jury credited the prosecution's witnesses and gave the People's evidence the full weight that might reasonably be accorded it. 30 People v Malizia, 62 NY2d 755, 757 (1984).~~'A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could conclude that the People sustained its burden ofproof. People v Danielson, 9 NY3d 342 (2007). c. The evidence was legally sufficient to establish that Jorgensen's reckless conduct caused her baby's death. To establish second degree manslaughter the People must prove that the defendant "recklessly caused the death of another." Penal Law §125.15(1). As to the term "recklessly," the Penal Law defines it as: A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such 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. Penal Law §15.05(3). There is no checklist for conduct which recklessly causes the death of another. The inquiry is whether based upon the circumstances of the case, did appellant create a foreseeable risk of death, did she fail to avoid that risk, and was appellant the cause of death. 31 Recklessness can be established witb.-evidence of both speeding and additional factors. For example, driving at 75 miles per hour on a rural road, ignoring several stop signs, and then colliding with a car in an intersection was sufficient to sustain a conviction of manslaughter in the second degree. People v Miller, 286 AD2d 981 (4th Dept 2001). In People v Poliakov, 167 AD2d 115 (lst Dept 1990), evidence of driving at an excessive speed and changing lanes rapidly was sufficient for a finding of reckless manslaughter. Id.at 116 ("defendant's conduct constituted a 'gross deviation' from the standards that a reasonable person would have followed in the circumstances presented.... Defendant's conduct was reckless, and not merely the result of carelessness, lack of skill or foresight."). see also People v Williams, 253 AD2d 445 (2d Dept 1998) (defendant drove in reverse at about 45 miles per hour for about 200 feet toward group of people and car "swerved from one side of the street to another and hit the victim, causing her to suffer fatal injuries"). Most recently, this Court upheld a conviction ofManslaughter in the Second Degree when a driver was speeding, crossed a double line into oncoming traffic, there was evidence that the driver was drinking and smoking marijuana, and the driver was familiar with the road. People v Asaro, 21 NY3d 677 (2013). Indeed, of the factors the Court of Appeals has identified as reckless, "dangerous speeding, racing, failure to obey traffic signals, or any other misconduct that created or 32 contributed to a 'substantial and unjustifiable' risk of death," several were present in this case. People v Boutin, 75 NY2d 692,697-98 (1990). 1. Ran a red light After witness Janet Neves saw what likely was Jorgensen's blue car speed through a red light (Tr 181, 204), Neves followed the car down Whiskey Road, a curvy, windy road with a speed limit of 30 miles per hour (Tr 59-60). One and a half miles later, Neves came upon a two car collision involving the blue car (Tr 105, 106, 117, 158-64). Neves found Jorgensen in the driver's seat of the blue car (Tr 165-66). There were no intersections on Whiskey Road between the intersection with the red light and the crash site (Tr 105). 2. Talking on cellphone while driving Telephone records retrieved from AT&T Mobile proved that Jorgensen was on her cellphone with her future father-in-law for four minutes, beginning at 2:45 PM. The call lasted between three and four minutes, making it possible that Jorgensen was talking on her cellphone immediately prior to the crash at 2:49 PM. (Tr 139-44). During that call, Jorgensen did not complain to her future father-in- law of any pain (Tr 69-71, 144). 3. Not wearing a seatbelt Jorgensen told Neves and several first responders that she was seven months pregnant (Tr 165-66, 228-29). EMT Saltares who treated Jorgensen saw 33 that she was not wearing a seatbelt but did see a child's car seat in Jorgensen's car (Tr 316). Jorgensen admitted to him that she did not wear it (Tr 310-12,314,315). Data downloaded from the black box in Jorgensen's car proved that at the time of impact, the driver's side seatbelt was locked in the retracted position (Tr. 353-54). Dr. Petraco, Jorgensen's OB/GYN testified that he counseled his patients to wear automobile seatbelts because of the likelihood of a placental abruption if involved in a car accident (Tr 512). The rapid deceleration of the body during a car crash creates a shearing effect which causes the placenta to partially or completely separate from the wall of the uterus. Depending upon the extent of an abruption, an unborn baby could suffer oxygen deprivation, organ failure, or death (Tr 533- 36). At Stony Brook Hospital Jorgensen was found to have suffered a thirty percent abruption of the placenta, and a hematoma to the left sidewall broad ligament due to a traumatic tear due to the impact of the crash and not wearing a seat belt (Tr 1417-20). 4. Evidence of prescription drug use At the collision site, Crime Scene Investigator Officer Gannon recovered prescription medicine bottles from the center console of Jorgensen's car (Tr 280). The prescription, issued to Jorgensen, was for Clonazepam, a benzodiazepine prescribed to treat anxiety and panic attacks. An information receipt normally given to the patient at the time a prescription is filled listed some of the drug's side 34 effects as drowsiness, dizziness, confusion, and behavior problems. It also warned of not mixing the drug with alcohol because this could intensify drowsiness (Tr 446). Additionally, two warning stickers were on the medication containers: one warned of drowsiness which could be intensified if combined with alcohol, and the other warned caution when operating a car (Tr 1375-76). Records proved that Jorgensen filled prescriptions for Clonazepam for over six months prior to the crash (Tr 432, 497). The consumption of alcohol or taking of drugs, even if not at the level of legal impairment, is a relevant factor in determining criminal liability for a death. People v Givens, 268 AD2d 240 (1st Dept 2000). 5. Alcohol and prescription drug ingestion Jorgensen's hospital blood sample, taken upon arrival in the emergency room, confirmed the presence of Clonazepam (Tr 1125-30) with a level of 12.5, below the level which would normally be reported (Tr 1136). Medical evidence was presented that even the reading of 12.5, which is a therapeutic level, would have been sufficient to have some impairment effect on Jorgensen (Tr 1144-46, 1205). An alcohol analysis of that blood sample indicated a blood alcohol reading of .06% (Tr 1242). Based upon Jorgensen's weight and gender, it would take a minimum of three alcoholic drinks to reach a blood alcohol level of .06 (Tr 1260). An expert testified that a combination of .06 blood alcohol reading and .35 Clonazepam level of 12.5 can cause impairment to some degree because the combination magnified the effects of each (Tr 1263). 6. Speeding on wrong side of road At the collision site, Investigator Gannon noted fresh tire marks from Jorgensen's car went over the double line (Tr 293). Based upon reconstruction of the accident, Suffolk County Crime Laboratory determined that Jorgensen was traveling on the wrong side of the road, at 44 to 49 miles per hour, when she collided head on with the vehicle driven by Mr. Kelly, which was traveling at 10 to 15 miles per hour (Tr 1470, 1479-83). 7. Failure to correct or break The accident reconstruction proved that for at least four seconds before the crash, Jorgensen and Mr. Kelly had an unobstructed view of each other (Tr 1515). Jorgensen was in the wrong lane, partially or fully, at least two seconds prior to impact. Mr. Kelly saw Jorgensen's vehicle coming at him and attempted to stop his vehicle (Tr 226-27,1499,1516). Jorgensen drove into the Kellys's car without any attempt to brake (Tr 1528, R 15-24). The reconstructions determined that because of the curve in the road, if Jorgensen had had a medical emergency as she traveled at the high rate of speed, she would have drifted off the road opposite of the curve and wound up in the woods instead of where the accident occurred (Tr 1523). 36 Consistent with the accident reconstruction was the data downloaded from the black box located in Jorgensen's vehicle (Tr 338, 343). The device recorded whether airbags deployed, vehicle speed, engine speed, brake pedal input, throttle position, and the seatbelt status from seven seconds prior to the collision to the time of impact (Tr 342). The data indicated that the seatbelts were in the retracted position, consistent with not being worn. The data recorded that Jorgensen was traveling between 48 and 50 miles per hour in the seven seconds before and at the time of the crash. Jorgensen's foot was on the gas pedal and she never hit the brake. The airbags deployed upon impact. A visual inspection of the vehicle proved that the driver's seatbelt was locked in the retracted position, that the vehicle was Bluetooth capable, and the airbagswere deployed (Tr 349-366). 8. Injuries from crash caused baby's death. At the time of the crash, Jorgensen was pregnant with her second child (Tr 76). Dr. Petraco testified that Jorgensen, who was seven months pregnant at the time, did not have any issues with the pregnancy (Tr 505-530). An autopsy of Baby _ proved that she suffered hypoxic encephalopathy due to a reduced blood flow to the brain, depriving it of oxygen (Tr 1408). She also suffered hemorrhages in various areas of her brain, consistent with hypoxic ischemic injury. These injuries caused cell death of the surrounding tissue. There was also fluid collection in her lungs and abdomen (Tr 1408-09). Her lungs 37 suffered hyaline membrane disease, a disease ofprematurity. Baby _'s liver and kidneys suffered cell death due to decreased blood flow (Tr 1410; R 7-14). The cause of Jorgensen's baby's cause of death, to a reasonable degree of medical certainty, was prematurity and hypoxic encephalopathy due to placental abruption which was caused aby blunt orce trauma to Jorgensen (Tr 1411). The cause of death was consistent with injuries sustained by an unborn child where a pregnant woman, not wearing a seatbelt, is in the driver's seat of a vehicle which is involved in a head-on collision (Tr 1414). Viewed in the light most favorable to the People, the prosecutor established that Jorgensen filled prescriptions for Clonazeparn for six months prior to the crash. These prescriptions carried warnings regarding the potential side effects, urged caution when driving, and advised not to mix the drug with alcohol. Jorgensen disregarded all these warnings on May 30, 2008 when she drove her car after having ingested alcohol and Clonazepam. Additionally, Jorgensen flagrantly violated the Vehicle and Traffic Law when she then drove in excess of the speed limit, ran a red light, was driving on the wrong side of the road, while she used her cellphone. And although Jorgensen was aware of the fragility of her unborn baby since this was her second child and she had a child car seat in her vehicle, Jorgensen chose not to protect her unborn child by wearing a seatbelt. Jorgensen's .38 failure to wear her seatbelt directly impacted the fate of Baby _ who should have been protected by the seatbelt. These facts and circumstances establish that Jorgensen was aware of and disregarded the substantial and unjustified risk that her acts would result in death to her daughter. People v Licitra, 47 NY2d 554, 559 (1979). As a result, her unborn child suffered blunt force trauma, sustained complications from a placental abruption, was born prematurely, and died days later from her injuries sustained in the crash. As a matter of law, a jury could conclude that the People sustained its burden ofproof. People v Danielson, 9 NY3d at 349. In a similar but less compelling case, the defendant was found guilty of Manslaughter in the Second Degree in People v Hardy, 30 Misc3d 967 (Sup Ct 2011). In Hardy, the defendant was found guilty of Manslaughter in the Second Degree where he recklessly and erratically drove his car over the speed limit, striking another vehicle head on. The driver of the other vehicle was 23 weeks pregnant. As a result of the collision, the female driver suffered a placental abruption requiring a caesarean section. As a result of the accident, the premature infant was found to have sustained deep tissue hemorrhage in the scalp and bleeding around the brain, a result of blunt force trauma. The cause of death to the baby was due to blunt force trauma and complications from maternal trauma. If a manslaughter conviction can be found against a reckless driver who crashes his 39 vehicle into a vehicle driven by a pregnant woman, the case here is even stronger to sustain the conviction. Jorgensen argues that her acquittal of four out of five counts meant that the jury rejected the People's proof of recklessness, leaving the only surviving element of recklessness to be Jorgensen's failure to wear a seatbelt. She argues that this factor alone is not evidence of recklessness, so the conviction must be vacated. This assumption is impermissible as it is not grounded in the law. The evidence on appeal must still be considered in the light most favorable to the People and because there was a conviction on one count of Manslaughter in the Second Degree, the jury credited the prosecution witnesses. The jury found all of the reckless factors plus Jorgensen's lack of seatbelt to be sufficient to support the conviction of reckless manslaughter. People v Montanez, 41 NY2d 53 (1976). That the jury may have engaged in leniency in acquitting Jorgensen of the other charges does not negate her guilt. People v Muhammad, 17 NY3d 532, 539 (2011). This Court recognized in People v Tucker, 55 NY 1 (1981), that a jury "may freely reject evidence and exercise its mercy function" !d. at 8. "[I]t is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury's permissible exercise of mercy or leniency." People v Horne 97 NY2d 404,413 (2002). "In other words, regardless of the court's instructions, a 40 jury is 'free to extend leniency and may decide not to convict a defendant of one or more charges'''. People v DeLee, _NY3d _,2014 NY Slip Op 08212 (2014), citing People v Muhammad, 17 NY3d at 539. The evidence proved that Jorgensen was speeding, ran a red light, was on her cellphone, was not wearing a seatbelt, drove on the wrong side of the road, continued to accelerate as she drove on the wrong side of the road, and had sufficient level of Clonazepam and alcohol in her system to impair her ability to react. Just because the jury did not find Jorgensen guilty of the deaths of the Kellys does not mean that the jury wrongly convicted Jorgensen of her baby's death. 41 POINT THREE THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ADMITTED EVIDENCE OF JORGENSEN'S PRESCRIPTION DRUG USAGE. JORGENSEN WAS NOT DENIED HER RIGHT TO A FAIR TRIAL. Evidence that Jorgensen, during her pregnancy, was prescribed two anti- anxiety medications, clonazepam and alprazolam, by two different physicians, in Jorgensen's view, requires reversal of her conviction. Jorgensen argues that the prosecutor used those pharmacy records and Jorgensen's OB/GYN records to portray her as a self-medicating drug and alcohol abuser, denying her her constitutional right to a fair trial (Jorgensen's brief at 93). Jorgensen distorts how and why the evidence was presented at trial. The admission of this evidence was a sound exercise ofthe trial court's discretion. A. Preservation The Appellate Division determined that the issue was partially unpreserved since defense counsel failed to object to some of the evidence. It also determined, In any event, the trial court did not improvidently exercise its discretion in admitting the majority of the challenged evidence, since it was relevant and not unduly prejudicial to the defendant, or was "reasonably necessary to correct the misleading impression" conveyed by the incomplete testimony the defense elicited from its expert toxicological witness ...To the extent that the testimony concerning the risks one of the prescribed medications poses to pregnant women may have been improper, the introduction of such testimony 42 was harmless, as the evidence of the defendant's guilt was overwhelming and there is no significant probability that this testimony contributed to her conviction ... Furthermore, the introduction of this testimony did not deprive the defendant of a fair trial. People v Jorgensen, 113 AD3d at 794. B. Standard of review for assessing admissibility of evidence "Evidence is relevant if it has any , "tendency in reason to prove any material fact." , " (citations omitted). People v Lewis, 69 NY2d 321, 325 (1987); People v Scarola, 71 NY2d 769, 777 (1988). "Put another way, 'evidence is relevant when it logically renders the existence of a material fact more likely or probable than it would be without the evidence' " (citation omitted). Of course, "[e]ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury." People v Scarola, 71 NY2d at 777. The trial court also has the discretion to decide whether expert testimony about a defendant's drug use is needed to help jurors understand the evidence and reach a determination of the facts ofthe case. People v Brown, 97 NY2d 500, 505 (2002). c. The probative value of the evidence outweighed any prejudice. Here, Jorgensen was charged with violating Vehicle and Traffic Law §1192, driving impaired under the combined influence of drugs or alcohol and drugs. This .43 charge was based upon the blood alcohol and toxicology results of appellant and her baby. The prescription bottles found in appellant's car and handbag at the crash scene were the same medications that were found in the blood of appellant and the baby, and were clearly relevant to prove the impaired charge. The warning labels on the bottle provided proof that appellant had knowledge of the side effects of the medications and consciously disregarded them. Further, the records supported the expert witnesses who testified to the synergistic effect of clonazepam and alcohol. This evidence helped establish appellant's reckless conduct. Although defense counsel asked for an offer of proof with regard to Dr. Petraco, he did not object to Dr. Petracos's testimony about the potential risks to an unborn baby when the mother is prescribed Clonazepam (Tr 500, 542-44), leaving the issue unpreserved. Criminal Procedure Law § 470.05. The court did give defense counsel a belated exception to Dr. Petraco's testimony of whether Jorgensen told him of her use ofClonazepam. The medical expert testimony from Dr. Child-Sims regarding how alcohol passes from the pregnant mother through the placenta to her unborn child was also not objected to so any complaint regarding it is unpreserved. In any event, Dr. Child-Sims' testimony was relevant to explain how baby _'s blood and urine tested positive for alcohol. And, in tum, this information helped pinpoint when and how much alcohol Jorgensen drank. 44 In response to the prosecutor's continuing motion In limine, the court determined that Jorgensen's seven month prescription history of clonazepam was relevant to the evidence of findings of clonazepam in her blood and the synergistic effect of the medication and alcohol (Tr 414-16). It also ruled that the prosecutor was prohibited from presenting any evidence that Jorgensen was prescribed alprazolam because there was no evidence that the drug or its metabolites were in Jorgensen's blood at the time of the crash (Tr 414). Indeed the records proved that by filling the prescription for clonazepam Jorgensen had, for seven months, been on notice ofthe drug warnings which were on the containers, one warned of drowsiness which could be intensified if combined with alcohol, and the other warned caution when operating a car (Tr 1375-76). This evidence standing alone or combined with the expert medical testimony that Jorgensen had alcohol and clonazepam in her system, went directly to proving the element of recklessness. Dr. Arendt, the forensic toxicologist, testified how clonazepam affects fine and gross motor skills, and can cause drowsiness, confusion, and will decrease a patient's decision and reaction times (Tr 1141-42). She also testified to the synergistic reaction when clonazepam is mixed with alcohol, magnifying the side effects of the medication (Tr 1146). Dr. Katz, the Chief Toxicologist at the Suffolk County Medical Examiners' Office, testified that a combination of Jorgensen's .06 45 blood alcohol reading and 12.5 clonazepam level-would cause impairment to some degree (Tr 1263). Because Jorgensen's clonazepam pharmacy records were relevant, the court did not abuse its discretion in admitting them into evidence. Defense counsel opened the door to the admission of appellant's Alprazolam prescriptions when he asked defense witness Dr. Middleberg about the Clonazepam, how a person can build a tolerance for Clonazepam, and how alcohol mixed with Clonazepam has an "additive" effect on the body (Tr 1819-25). Q. Can someone create a tolerance to Clonazepam? A. Yes. Q. What is tolerance? A. Tolerance is when you take a substance and you develop the ability to - - handle it, for lack of a better term. There are two ways to look at that, when I say the ability to handle it. It could mean that you need more of a dose to get a biological effect, a pharmacological effect; or it could mean that you adapt to the side effects of a substance. So there are multiple kinds of tolerance ... it's all based on the individual, how long they. have been taking it, how much they're taking. (Tr 1819). Having raised the issue of tolerance and the effect of mixing Clonazepam with other substances, the court permitted the prosecutor to cross-examine the witness on the issue of cross-tolerance of two benzodiazepines, Alprazolam and Clonazepam, the two medications appellant filled prescriptions for months prior to 46 the crash (Tr 1833). The court limited the l~rosecutor's use of evidence to questions strictly in the context of tolerance, ifhe was aware that she has been prescribed-riot that she took it--but that she had been prescribed it. And you can ask about the clinical distinction between Alprazolam and Clonazepam, however, that effects the synergistic or additive--[effect]. ..And you will be permitted to introduce the evidence of the prescription. But that's it (Tr 1833). Such evidence elicited by the prosecutor was relevant to the jury understanding how appellant's body reacted to prescribed doses of medication and went to the core of the prosecution's case that appellant was on notice of the side effects of the anti-anxiety medications and ignored the side effects when she got into her automobile and failed to secure her seatbelt. Lastly, even if the ruling permitting the introduction of Jorgensen's pharmacy records of Clonazepam and Alprazolam was erroneous, it was harmless and does not entitle Jorgensen to a new trial. The jury acquitted Jorgensen of the charges of driving under the influence of drugs and alcohol, issues related to tolerance. Even without that evidence, there was overwhelming evidence of Jorgensen's reckless acts which resulted in the death ofher child. "An error oflaw may be found harmless where 'the proof ofthe defendant's guilt, without reference to the error, is overwhelming" and where there is no "significant probability... that the jury would have acquitted the defendant had it not been for the error." People 47 v Arafet, 13 NY3d 460,467 (2009), citing People.v Crimmins, 36 NY2d 230, 241- 42 (1975). .48 POINT FOUR THE PROSECUTOR'S SUMMATION WAS PROPER AND DID VIOLATE JORGENSEN'S RIGHT TO A FAIR TRIAL. Jorgensen contends that the prosecutor's summation violated her constitutional right to a fair trial. She claims that in her summation, the prosecutor shifted the burden ofproof, incorrectly instructed the jury on the law, and exploited and misstated evidence admitted at trial. These cumulative errors, Jorgensen argues, require reversal of the conviction. Jorgensen's partially preserved claim is without merit. When the selectively parsed comments are placed in the context of what the prosecutor actually said at trial, it is quite clear that the comments did not extend beyond the bounds of fairness. The prosecutor did no more than present arguments to draw the jury's attention to the evidence and permissible inferences from that evidence, and respond to defense counsel's summation. Thus, the Appellate Division was correct when it determined that the challenged comments did not attempt to shift the burden of proof, were either fair comment on the evidence or responsive to arguments presented in the defense summation, or did not deny Jorgensen a fair trial. The appellate court also found that any possible prejudice from the prosecutor's remarks was cured by the court's ameliorative instruction. People v Jorgensen, 113 AD3d at 794-95. 49 A. Jorgensen's summation claim is largelyunpreserved. Where a defendant does not challenge the prosecutor's summation remarks in a timely and specific manner, the claims are unreviewable by this Court. People v Romero, 7 NY3d 911 (2006) ("Most of the remarks identified by defendant on appeal are unreviewable because they went unchallenged at trial, were met with unspecified, general objections, or were raised for the first time in a post- summations mistrial motion [citations omitted]"). Also, an objection that occurs after the prosecutor finishes summation does not preserve the issue for this Court's review. People v LaValle, 3 NY3d 88, 115 (2004) (where Court held that post- summation motion for mistrial by defense counsel claiming that prosecutor had attempted to improperly "inflame the jury" during summation was unpreserved); see also, People v Harris, 98 NY2d 452, 492 (2002) (defendant's post-summation motion to set aside verdict did not cure his failure to register specific objection that prosecutor's summation comments violated his constitutional rights against compelled self-incrimination). Although defense counsel made numerous objections during the prosecutor's summation, he failed to object to many statements with which Jorgensen now takes issue, leaving those claims unpreserved. People v Gray, 86 NY2d 10 (1995); People v Gonzalez, 83 AD3d 1093 (2d Dept 2011). The lack of preservation of each instance will be discussed below. 50 Additionally, defense counsel's motion for a mistrial based upon the prosecutor's summation, was untimely as it was not made until after summations were completed and the jury was released for lunch. Moreover, this request for a mistrial was not specific - "Plus her finishing remarks are completely improper as well" (Tr 2118). This was insufficient to preserve the objection. People v Tonge, 93 NY2d 838 (1999) ("Defense counsel made only a general objection to the prosecutor's remark at summation; a party's failure to, specify the basis for a general objection renders the argument unpreserved for the Court's review [citations omitted]"). See also, People v Tardbania, 72 NY2d 852 (1988). Finally, when the court issued curative instructions to the jury during the prosecutor's summation, defense counsel had no objection to them (Tr 2123). Thus, appellant's claim is unpreserved for appellate review. Criminal Procedure Law § 470.05; People v Scoon, 303 AD2d 525 (2d Dept 2003). In any event, the prosecutor's comments do not warrant the reversal of appellant's conviction. B. Standard for reviewing propriety of prosecutor's summation During summation, a prosecutor is entitled to "comment upon every pertinent matter of fact bearing upon the questions the jury ha[s] to decide" and is afforded the "widest latitude by way of comment, denunciation or appeal in advocating [his or her] cause." People v Ashwal, 39 NY2d 105, 109 (1976); see also, People v Halm, 81 NY2d 819 (1993) (comments when viewed in the context of entire trial, fell .51 within latitude of attorneys in advocating their-eause). A prosecutor's summation cannot be considered in a vacuum but must be assessed against the realities of a trial. Specifically, they must be evaluated against the background of the trial evidence and defense counsel's closing argument. People v Halm, 81 NY2d at 821 (prosecutor's closing statement must be evaluated in light of defense's summation, which put into issue victim's character and justified People's response). C. The prosecutor's summation was proper. When the prosecutor's comments are viewed in their entirety and within the context of defense counsel's own statements during summations, it is clear that the comments were not impermissible. Defense counsel began his closing, "The Kellys lost their lives in a tragic accident, their marriage of many, many years ended in a tragic motor vehicle accident. And you can feel sorry for them. If you don't feel sorry for them then there's something wrong with you" (Tr 2016-17). He also argued, "I'm sure that the Kellys, I'm sure that they miss Mr. [a]nd Mrs. Kelly, and I know that a day doesn't pass where Jennifer and (her husband) don't think about their daughter" (Tr 2017). He continued, "It is heartbreaking that those two individuals ended their marriage in that vehicle after this tragic, tragic accident The testimony regarding Mrs. Kelly having to hold on to Mr. Kelly's hands The fact that that poor woman had to pet him. And he was gone" (Tr 2037) . .52 In response, the prosecutor compared Mrs: Kelly's attentiveness to her dead husband with Jorgensen's lack of interest in her unborn baby at the time of the crash (Tr 2090-91). This analogy was based upon the evidence presented at trial. Firefighter Timms testified that when he arrived on the scene, he went over to the Kelly's vehicle. There he found Mrs. Kelly "petting" her dead husband (Tr 226). FirefighterlEMT Saltares treated Jorgensen at the scene of the crash. He testified how Jorgensen asked about the cuts on her face, not about her baby (Tr 322). This commentary was relevant to point out to the jury how Jorgensen demonstrated a lack of concern for the risk posed by her reckless conduct. Further, upon defense counsel's objection to the analogy, the court instructed the jury, "Again, neither attorney is a witness to this case. Both attorneys in summations will give you their versions of how they feel the evidence should be perceived and considered by you" (Tr 2091). Even if the analogy was improper, the court remedied it with curative instruction which defense counsel did not find objectionable. In any event, any error was harmless since appellant was acquitted of the manslaughter counts attributable to the death ofthe Kellys. Appellant next argues that the prosecutor distorted the evidence when she compared Jorgensen's failure to use a seatbelt to safeguard herself and Baby _with a parent who places an infant in a car without a properly secured car seat. To support her view of the evidence, the prosecutor directed the jury to the data .53 collected from the black box located in appellanttsvehicle, and the observation of a technical specialist for Nissan, that appellant's seatbelt was found locked in the retracted position, the opposite of where it should have been had appellant worn the seatbelt during the crash (Tr 2051). This evidence was important to explain how appellant's unrestrained body was thrown forward into the exploding air bag upon impact with the Kelly's vehicle, causing a placental abruption after the crash and causing the unborn infant to sustain life threatening injuries. The prosecutor's analogy of protecting the baby in utero to protecting it as a newborn while riding in a car was proper. Jorgensen argues that the prosecutor erroneously instructed the jury on what constitutes recklessness when she stated that the jury need not agree on which of the seven reckless acts applied and that anyone of them alone can prove her recklessness. Any error was harmless. Prior to opening statements, the court told the jury that the court would instruct the jury on the law (Tr 10), that the jurors must accept the law as it is given by the court (Tr 13). Prior to summations, the court reminded the jurors that the court would give them the applicable law, not the attorneys (Tr 2014). When the court had its turn to give the jury their final instructions, the court defined what was required for a finding of recklessness- instructions that mirrored the New York Pattern jury instruction. Defense counsel did not have any objection to the court's 54 instructions (Tr 2146-47). Since the court repeatedly told the jury that it alone would instruct them on the applicable law, and the court did properly instruct the jury as to the law, it is presumed that the jury applied the correct law as it was given by the court. Jorgensen misconstrues a portion of the prosecutor's summation when she claims that the prosecutor stated that the dosage of Clonazepam in Jorgensen's system was a result of four pills missing from the bottle found on her person. The prosecutor stated: Dr. Middleberg talked to you about tolerance, and if someone is taking something long enough, they might not have an effect, they may not feel an effect. It's possible that the defendant developed a tolerance. That would explain why she has a level of Clonazepam consistent with four times her dosage. And remember, that's four times at one. She would have to take four of those pills at once for that two milligram equivalent (Tr 2087). The prosecutor did not note the number of pills missing from the bottle was the same as what Jorgensen would have had to ingest to reach the level of clonazepam found in her system. Jorgensen further mischaracterizes the evidence when she states in her brief, "But there was no evidence about when, if at all, Defendant-Appellant consumed any of those prescribed pills, ..." (Jorgensen's brief at 127). An analysis of blood 55 taken from Jorgensen at the hospital, performed by the Suffolk County Medical Examiner's Office Toxicology Laboratory, proved that there was evidence of Clonazapam in Jorgensen's blood (Tr 1122-23, 1243). Defense counsel failed to object when the prosecutor said that Jorgensen was "self-medicating" leaving the issue unpreserved (Tr 2104). In any event, the prosecutor's single reference to Jorgensen as "self-medicating" was ill advised but fleeting. The statement was overshadowed by the overwhelming evidence of appellant's reckless acts, which led to the crash and subsequent death of Baby Even if the comment were incorrect, the court informed the jury to only consider the evidence and if the jury found that an attorney misstated the evidence during summation, they were to disregard the comment (Tr 2104). Not only did the court instruct the jury prior to openings statements about how the counsels' statements were not evidence, it also instructed the jury that the burden of proof is on the prosecutor (Tr 9) and that the jury is the sole judge of the facts (Tr 13). Prior to counsels' summations, the court again reminded the jury that they alone were the finder of fact, and that if they found what an attorney said in summation was not based on evidence, they were to disregard that statement (Tr 2013). Jorgensen claims that the prosecutor allegedly shifted the burden of proof when she stated that there are 58 minutes between Jorgensen's shopping at Michael's and the crash, the time in which she may have gone home and had a 56 drink. The prosecutor's comments were iRcresponse to defense counsel's summation where he attacked the prosecution's evidence that Jorgensen was intoxicated. As defense counsel argued: It doesn't add up that a female that's seven months pregnant, driving to her future father-in-law's house with her car packed for a garage sale, she's moving, she was just at Michael's she spoke with her OB/GYN that morning, she's on the phone with her father-in-law, it doesn't make sense that she would have a point zero sex or point zero eight reading while she's driving there." (Tr 2027). Defense counsel argued that it is not believable that Jorgensen "just threw back three to five drinks in fifty minutes" (Tr 2046-47). Defense counsel also noted the testimony of witnesses who said that they did not smeII alcohol on Jorgensen immediately after the crash and that she did not exhibit slurred speech (Tr 2021-22,2027-28,2029). The prosecutor's response was based upon a conclusion that could be drawn from the testimony based on Jorgensen's father-in-law, who believed that immediately before the crash Jorgensen was traveling from her house to his house, and from Mr. Katz who testified that Jorgensen's blood alcohol level at .06 showed that she had approximately three drinks in the hour before the crash. The comments did not shift the burden of proof. The prosecutor's statement was a reasonable inference based on the evidence and did not require that the defense 57 disprove it. Rather, it is evidence of guilt. InaJ1Y event, any error was harmless because the court repeatedly instructed the jury that the burden of proof is on the prosecution (Tr 9, 2024) and it is presumed that the jury followed the court's instructions. Jorgensen failed to preserve her argument that the prosecutor changed the theory of the case (Tr 2116). When the prosecutor's summation is read as a whole, the prosecutor's theory of the case was that Jorgensen's reckless conduct caused the crash which resulted in injuries to her fetus and those injuries lead to the baby's death days after her birth. Contrary to Jorgensen's argument, the prosecutor did not state that Baby _'s death may have been a result of a Jorgensen's abuse of prescription medication. The comments in the prosecutor's surmnation which upon which appellant bases her argument were limited to the baby's breathing issues. When the prosecutor directed the jury to the physical condition of Baby _ at birth, she stated, "Baby _ was born with an Apgar score of one. Her few days oflife were spent on a ventilator with difficulty breathing. Was that difficulty due to premature lungs or the drugs the defendant was taking that's known to affect a fetus' breathing (Tr 2115). This statement did not change the theory of the case. The prosecutor's reference to a potential sentence of probation (Tr 2071) was in response to the defense counsel's reference in his summation to the possibility of incarceration (Tr 2058-59). Any impermissible reference to 58 Jorgensen's sentencing exposure was cured by the court when it gave curative instructions to the jury to disregard the prosecutor's statement (Tr 2122). Without objecting to the court's curative instruction, Jorgensen's contention is unpreserved. To conclude, the remarks made by the prosecutor in her closing statements, were either fair comment on the evidence, permissive comment, responsive to defense counsel's summation, not so prejudicial as to constitute reversible error in light of the prompt curative instructions given by the court, or harmless in light of the overwhelming evidence of the defendant's guilt. People v Tonge, 93 NY2d at 839-40. Further, reversal "is an ill-suited remedy for prosecutorial misconduct." People v Galloway, 54 NY2d 396, 401 (1981). "As a general rule, reversal...is mandated only when the misconduct results in substantial prejudice to the defendant so that he .. .is deprived of a fair trial" [citations omitted]. People v Morales, 168 AD2d 85, 90 (2d Dept 1991). S9 POINT FIVE THIS COURT IS PRECLUDED FROM REVIEWING THE IMPOSED SENTENCE. Jorgensen argues that her sentence was illegal because the court allegedly took into account the two deaths of which she was acquitted when it imposed the indeterminate sentence of three to nine years. As the Appellate Division found, Jorgensen's claim is unpreserved and, in any event, without merit. People v Jorgensen, 113 AD3d at 795. The record proves that Jorgensen's sentence was based solely on the one count of manslaughter of which she was convicted. The sentence is legal. Pursuant to Criminal Procedure Law § 470.05(2), this Court has limited powers of review. "To create and preserve a question oflaw amenable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction." People v Cona, 49 NY2d 26 (1979). "Although the Appellate Division had authority to address defendant's unpreserved challenges to the orders in the exercise of its interest ofjustice jurisdiction, this Court is without power to do so and we therefore may not consider defendant's arguments on the merits." People v Nieves, 2 NY3d 310, 317 (2004). Because defense counsel failed to object at sentencing that the court imposed an illegal sentence, or make a Criminal Procedure Law § 440.20 motion raising the issue of the illegal sentence, the Appellate Division correctly 60 determined that the issue was not preserved-for appellate review. People v Jorgensen, 113 AD3d at 795. Criminal Procedure Law § 470.05(2); People v Hurley, 75 NY2d 887 (1990); People v Lemon, 62 NY2d 745 (1984). The record, of course, shows that Jorgensen was not punished for the Kellys' deaths. At sentencing, the court stated: The jury has spoken and the jury has seen fit and I abide by their decision and I respect their decision in that they acquitted Miss Jorgensen of four count's, but convicted her of the one count of Manslaughter in the Second Degree, which is a Class C felony, as you know, specifically in the death of her baby, _ Jorgensen (Sent. Mins. at 36-7). The court continued how it found Jorgensen to be "superficial and evasive" (Sent. Mins. at 38) and that Jorgensen's criminal history was replete with acts which were selfish and reckless (Sent. Mins. at 39). Her criminal record included convictions for speeding, driving while impaired, aggravated unlicensed operation of a motor vehicle, and leaving the scene of an accident. All these convictions occurred within a four-year period. Most important, as the court described, the present conviction isfor a "very serious offense": After considering the input of Probation, the People, yourself, and including Miss Jorgensen, it's the sentence of the Court the defendant be sentenced to a maximum period in state's prison of nine years, with a minimum of three years, in full satisfaction of the 61 conviction on the C felony of Manslaughter m the Second Degree (Sent. Mins at 40). Although the court remarked on the facts of the case, that the crash was "a very serious offense that resulted in three deaths" (Sent. Mins. at 39), the court clarified that its sentence was only for one of those deaths: I am sentencing based on the death only of baby _, although, obviously, the Kellys lost their lives in the accident. I don't feel that the maximum is warranted here, given Miss Jorgensen's background and her--this being her first felony conviction (Sent. Mins. at 39). When viewed as a whole, the record demonstrates that the imposed sentence was solely for the crime of which Jorgensen was convicted. The court reviewed Jorgensen's criminal history and lack of remorse before making its determination. The court went out of its way to specify the factors it considered in making its determination and the factors it would not consider, specifically the charges of which Jorgensen was acquitted. Jorgensen's sentence was legal. Now, for the first time, Jorgensen offers the minutes from the wholly unrelated sentencing of one Charlotte DePersia in support of her argument that Judge Condon sentenced Jorgensen based upon the deaths of which she was acquitted. Ms. DePersia was sentenced by Judge Condon several days after Jorgensen's sentencing. In the DePersia minutes, Judge Condon refers to a sentencing of an unnamed defendant several days prior where three people died as 62 a result of that defendant's actions. This Court is precluded from considering the sentencing transcript in the unrelated matter ofPeople v DePersia. The transcript is subject to the preservation rule. People v Samms, 95 NY2d 52, 57-58 (2000) (challenge which relies on documents not developed in record must be preserved for consideration by Court). The first time Jorgensen offered the transcript of the unrelated proceeding was in a letter to Judge Smith prior to oral argument on the leave application. In the letter, Jorgensen requested that the Court take judicial notice of the certified transcript. Judge Smith did not give any indication in his order granting leave to appeal that the DePersia transcript was made part of the record. Without filing a Criminal Procedure Law § 440.20 application, the transcript is not part of the record reviewable by this Court. Even if this issue was not procedurally barred from this Court's review, the record disproves appellant's claim. The reference to three deaths is accurate and nothing in the unrelated minutes show that the court imposed a greater sentence because of the Kellys' deaths. Since the record refutes Jorgensen's argument, there is no basis to vacate her sentence. .63 Conclusion .... The judgment of conviction and decision of the Appellate Division should be affirmed, DATED: February 24,2015 Riverhead, New York Respectfully submitted, THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant B T A istant District Attorney Of Counsel Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 64 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------J( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- JENNIFER JORGENSEN, Defendant-Appellant. --------------------------------------------------------------J( APL-2014-00208 App. Div. Case No. 2012-05826 Suffolk Co. Indictment No. 1425/09, 1099110 ATTORNEY'S CERTIFICATION I, KARLA LATO, ESQ., an attorney admitted to practice in the State of New York, hereby certifies that the digital filing of Respondent's Brief required by sections 500.2, 500.12[h] and 500.14[g] of the rules are in PDF format and are identical to the filed original printed material. DATED: February 24, 2013 Riverhead, New York E'ATO ssistant District Attorney Of Counsel to THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant 65