The People, Respondent,v.Jennifer Jorgensen, Appellant.

Brief

N.Y.September 8, 2015

Of Counsel: To be Argued by: RICHARD E. MISCHEL (Time Requested: 30 Minutes) APL- 2014-00208 Suffolk County Clerk's Indictment Nos. 1425/09 and 1099/10 Appellate Division, Second Department Docket No. 2012-05826 rior to trial, Defendant-Appellant objected to the admission of evidence relating to the blood tests done on Baby for this reason, and requested a 24 Katherine Gercke is also a registered nurse at Stony Brook Hospital, assigned to NICU (Tr. 603). Nurse Gercke arrived at the hospital on May 30, 2008, to begin her 7 p.m. to 7 a.m. shift and was assigned to Baby ___ (Tr. 604). Her status was "extremely critical" (Tr. 604; 613), having been through "a trauma" before her delivery (Tr. 604): "I knew from what I got in the report that she was full code at the time of delivery" (Tr. 604-05), meaning that "she required resuscitation immediately after birth" (Tr. 605). Toxicology was ordered on the baby's urine, which was not done until the early morning hours of June 1, 2008, because "the baby wasn't producing enough urine to send" (Tr. 607 -08). The test "came up positive for barbiturates and alcohol" (Tr. 61 0). According to the hospital records, before the urine sample was collected, Baby received several blood transfusions-- "a significant amount" (Tr. 615). She was "suffer[ing] from*** metabolic acidosis" (Tr. 615). The positive alcohol result was for "low level" (Tr. 620), and "the positive for barbiturates" was "based on the fact that 'the medication she received in the hospital was phenobarbital" (Tr. 623). hearing, which was denied (Tr. Jan. 17, 2012, at 11-13). 25 According to Michele Byrne, the "associate technical director of chemistry, hematology, the cancer center lab, and the emergency room STAT lab" at Stony Brook Hospital Medical Center (Tr. 788), after blood and urine samples from patients are collected they are sent to the lab for testing (Tr. 789-91 ). Stony Brook Hospital lab does not do toxicology tests on blood specimens -- only on urine specimens because the Hospital "[does]n't have chain of custody there" (Tr. 832- 33). Moreover the toxicology done on urine samples is not valid for forensic purposes because Stony Brook "only has a clinical toxicology permit" and "there is no chain of custody" (Tr. 834). The tests are not run for "forensic purposes" (Tr. 834); rather, the tests are "run" "for the medical professionals, for the management of the patient. It's for diagnostics too" (Tr. 842-43). The samples are taken for "medical purposes" (Tr. 843). After the specimens are tested, what is left is put into "a large walk-in refrigerator" for "one week" (Tr. 799-800) and then "it's thrown out" (Tr. 837) unless a request for the specimen(s) is/are received from the District Attorney's Office or the Medical Examiner's Office (Tr. 801; 831). In this case, Stony Brook Hospital received a call in May, 2008, from the District Attorney's Office asking "do we have any blood" (Tr. 812-14). What remained after the tests, consisting of two tubes containing in one, Defendant- 26 Appellant's blood, and in the other, Baby ____ 's blood (Tr. 838), was put aside, but the remaining specimens were not picked up until June 2, 2008 (Tr. 814),8 by Detective Baillard who was "complet[ing] a search warrant for [Defendant-Appellant's] hospital" (Tr. 706). 9 Lawton Bryant, "a morgue ambulance driver" for the Suffolk County Medical Examiner (Tr. 660), picked up "a deceased baby" and the baby's "blood work," on June 5, 2008 (Tr. 662-68). Evidently, Mr. Bryant signed for two tubes ofblood work and brought them to the Medical Examiner's Office (Tr. 671-81). 3. Toxicology. Detective Baillard went to Stony Brook Hospital from the accident scene, arriving there at about 4:45p.m. (Tr. 695; 734). He contacted the District Attorney's Office at about 5:05p.m., to start the process for obtaining a "blood 8Michele Byrne testified that, when specimens of this kind are "give[ n] out," a form is "fill[ed] out*** and signed by the person who gave it to the detective; then it has the detective's signature, a copy of his I.D. and a copy of the search warrant" (Tr. 813-14). The form "is supposed to be dated" (Tr. 814). In this case the form, people's Exhibit 64, was not properly dated (Tr. 813-14). 'Detective Baillard identified People's Exhibit 63 as the vial of blood taken from Defendant-Appellant on May 30,2008, prior to surgery (Tr. 706-09). People's Exhibit 64, Stony Brook's Department of Laboratories Specimen Release Form, was identified by Detective Baillard as "the release form that I signed for this particular blood sample" (Tr. 709-12). 27 warrant," commonly known as "a DWI Kit" to obtain blood from Defendant- Appellant (Tr. 696-97). He saw an empty bottle of clonazepam belonging to Defendant-Appellant (it was found in her pocketbook). The issuing pharmacy was the Quality Pharmacy in Selden; prescription date, May 1, 2008; quantity, fifteen pills; and the name on the bottle was "Jennifer Jorgensen" (Tr. 699-702; 752). Nothing was indicated on the bottle about driving or drowsiness (Tr. 753). A "blood warrant" was issued and the blood was drawn (2 tubes) from Defendant-Appellant at about 11:15 p.m. (Tr. 702-04) -- some five hours after Detective Baillard had first called the District Attorney's Office to get the warrant (Tr. 736).10 While he was at the hospital, Detective Baillard learned that Defendant- Appellant was moving into her future-in laws' residence (the Kaisers), at , where her fiance, Richard Kaiser, Jr., had lived (Tr. 714-15). According to her father-in-law to be, Richard Kaiser, Sr., he built an 10Admitted into evidence as People's Exhibit 62 was Defendant-Appellant's DWI [blood] kit (Tr. 703-04). The kit was sealed and "secured" in a refrigerated locker in the crime scene lab (Tr. 704-05; 751-52). Admitted into evidence as Defendant's Exhibit F was a copy of Det. Baillard's Amended [Supplemental] Report in which he lists the factors contributing to the accident (Tr. 771-74). Not listed as contributing factors were "'Alcohol involvement'" or "'prescription medication"' (Tr. 773). 28 apartment in his house for Defendant-Appellant and her son, in the basement and she was "in transition," moving into the apartment {Tr. 67). On the day of the accident, sometime after noon, Mr. Kaiser spoke with Defendant-Appellant on the phone-- he thought she was driving from her mother's house in Miller Place to his house with "things" she was planning to sell at a garage sale, which was planned for the next day. The conversation ended uneventfully {Tr. 71-79). Mr. Kaiser's wife was planning a surprise shower for Defendant-Appellant, and was sending out invitations {Tr. 76-77). 11 Kristen Ferraro is an employee in the Suffolk County Medical Examiner's Toxicology Lab. Her position is Forensic Scientist 1 {Tr. 851-52). On June 26, 2008, Ms. Ferraro tested "antemortem" blood for alcohol received from Stony Brook Hospital on June 25, 2008, which supposedly was drawn on May 30, 2008, at approximately 5:30p.m., from Baby {Tr. 853-71; 877; 878-79; 899; 908-09; 930-31). Ms. Ferraro was unable to account 11Tyann Kurz, an AT&T employee and custodian of records, testified that according to AT&T records a call was made to Richard Kaiser, Sr.'s home phone from one of his cell phones, at about 2:45p.m. on May 30, 2008, which lasted 3-4 minutes (Tr. 132-50; 155-56). The cell-phone was "blue-tooth capable" (Tr. 151- 52) but that does not mean "it's automatically going to sync to a car" (Tr. 155) -- "you could have it that it does, but it doesn't all the time" (Tr. 155). Detective Baillard did not investigate whether the phone was "blue tooth enabled" (Tr. 709) (see post, at 53, n.20). 29 for the fact that the transmittal document for the specimen (People's Exhibit 60) indicated that two tubes were released by Stony Brook Hospital to the ME (Tr. 900-05), but she only had one, adding that "You would have to ask Stony Brook Hospital about it" (Tr. 905); and, regarding the one tube, she acknowledged that, before she tested the contents, "I couldn't say what happened to the sample before it got to me" (Tr. 908-09). Thus, she was not aware that: what she tested was not "whole blood", meaning that something was taken out of the blood, and it was not the same sample that was taken out of the baby (Tr. 917); it had been "centrifuged" when it was at Stony Brook Hospital; or the sample came from an infant transfused at birth (Tr. 899-900; 907-08; 916-17; 944); and, the container contained no blood preservatives (Tr. 920). There was also the possibility that the specimen was contaminated, being that it was tested before Ms. Ferraro tested it (Tr. 917). The amount of blood in the green top vial delivered to Ms. Ferraro (about 150 microliters [Tr. 897]) was too little to be tested -- at least 200 microliters are needed for the testing (Tr. 869; 897-99). To do the test, "we did a dilution" (Tr. 869). She explained that "[a] dilution is when we take a measured amount of sample and combine it with the same amount of negative blood," meaning "blood that contains no ethanol" (Tr. 870). In this case, a 100 microliter sample was taken 30 from the tube and combined with 100 microliters of negative blood (Tr. 870). When tested, the baby's blood sample "was positive for ethanol" but, because this was a "two times" dilution, the result (a 0.015%), "we have to times it by two, so the reported concentration was a zero point zero three percent" (Tr. 871 ). The test on Baby 's antemortem blood was "run" once (Tr. 926) -- no verification was done (Tr. 913). Being that "whole blood" was not tested, Baby ____ ' s reading of 0.03% would be reduced 10%, if the substance tested was plasma, to 0.027 (Tr. 910-12; 939-40). Ms. Ferraro explained that her department does not make those calculations -- the report would indicate the result and what was tested, because "we don't charge anyone with the crime so we're not making that adjustment. It would be up to them ['the person charging them' (Tr. 914)] to do that adjustment, but it [the report] would state what type of specimen was tested" (Tr. 910; 911- 12). Lori Arendt is an analyst in Suffolk County Medical Examiner's Office, toxicology department -- her title is Forensic Scientist III, and she supervises the drug DWI program (Tr. 1115-16). Ms. Arendt tested the blood in the DWI kit (People's Exhibit 62) taken from Defendant-Appellant, pursuant to the "blood warrant," at 11: 15 p.m., on May 30, 31 2008, at Stony Brook Hospital. The result of the alcohol testing was "alcohol not detected" (Tr. 1119; 1160). Drug screening and quantification resulted in findings of "an indication of clonazepam and morphine to be present" (Tr. 1122; 1124). Morphine was not considered to be significant because, according to the medical records, Defendant- Appellant was given morphine in Stony Brook Hospital (Tr. 1129; 1162). Regarding the drug, clonazepam (a medication prescribed as a sedative or for anxiety, and, identical to alcohol, is a central nervous system depressant which can cause drowsiness, confusion, etc. [Tr. 1131, 1141-42; 1145]), the amount detected was a "low level" (Tr. 1144) --"below what we would report" (Tr. 1122- 23; 1136; 1160-62; 1180-86; 1205). According to Ms. Arendt, clonazepam has a long half-life, between 20 and 60 hours (Tr. 1191; 1207), meaning that the drug can show-up in a person's system long after it has been taken (Tr. 1191; 1207). She was not able to determine when Defendant-Appellant came in contact with the drug, and would opine only that, if it is in someone's system at a reportable level, then "it's having an effect" (Tr.l191). Clonazepam will interact with alcohol by enhancing the effect alcohol has on a person -- it is considered synergistic, meaning that the total effect of the 32 combination of alcohol and clonazepam would be greater than the effect of those substances separately (Tr. 1145-46). And, while it would be "reasonable to believe that there would be impairment to some degree" from a combination of two substances, Ms. Arendt noted that, in determining whether there was impairment, "most of that is based on observations and actions," (Tr. 1145-46; 1192-93 ). People have different tolerance levels for these substances, which can be affected by a person's weight and when the substance(s) is/are being consumed (Tr. 1208). Ms. Arendt also had contact with the blood sample drawn from Defendant- Appellant at Stony Brook Hospital (she "accessioned" the vial and saw it for the first time on June 3, 2008 [Tr. 1125-1172]), shortly after her arrival at the ER -- the so-called red-top tube released to Det. Baillard by Stony Brook Hospital on June 2, 2008, to be delivered by him to the Suffolk County Medical Examiner's Office (Tr. 1125). The blood in the red-top tube was not drawn by the hospital for forensic purposes (Tr. 1174). There was less blood in the tube than what the toxicology lab ordinarily would need for its tests (Tr. 1125-27; 1173). Consequently, dilutions were done at the lab for forensic testing (Tr. 1173-74), and some tests could not be 33 performed {Tr. 1127). 12 Also unlike the grey-top tube in the DWI kit (People's Exhibit 62), the red- top tube (People's Exhibit 63, containing the small volume of Defendant- Appellant's blood drawn prior to surgery), did not contain a solid anti-coagulant, to prevent the blood from clotting (rather, it contained "a clot activator" [Tr. 1175]), or a blood preservative, which "prevents creation of bacteria" and retards blood decomposition {Tr. 1155-57; 1171-72; 1181), which is significant because contamination can occur {Tr. 1178-79). And, unlike the grey-top tube, People's Exhibit 62, prior to it being "accessioned" by the toxicology lab, which marks the beginning of the chain of custody, there is no chain of custody for People's Exhibit 63, the red-top tube before then (Tr. 1125-27; 1163-71; 1172-73; 1174- 77), which is necessary to protect the integrity of the sample (Tr. 1172). 'Ms. Arendt had no idea what happened, or what was done, to the red top tube, or who had access to the tube, before she "accessioned" it {Tr. 1165-66; 1174; 1177). Finally, Ms. Arendt did not know if the sample in People's 63 had been "centrifuged" at Stony Brook Hospital {Tr. 1175-78). Brian Macri is also employed by the Suffolk County Medical Examiner's 12Dilutions were not done on People's Exhibit 61 --the DWI kit-- because sufficient blood samples were taken {Tr. 1159-60). 34 Office, and is assigned to the toxicology department (Tr. 1009-1 0). He is a Forensic Scientist III (Tr. 1 009). On June 25, 2008, Mr. Macri received, for alcohol (ethanol) testing, People's Exhibit 63, the red-top vial, containing Defendant-Appellant's hospital blood drawn on May 30, 2008, shortly after her arrival at Stony Brook Hospital ER (Tr. 1012-13; 1079-80). This was the same vial retrieved by Lori Arendt on June 3, 2008, which she tested for clonazepam (Tr. 1073; 1079). To Mr. Macri, the blood "was red," appeared to be unclotted "whole blood" (Tr. 1014; 1042-43; 1075). But, because ofthe limited quantity, "we did a times two dilution*** in each case we did a one to two dilution," using "100 microliters of the hospital blood and 100 microliters of unknown negative blood" (Tr. 1027- 28; 1033; 1038; 1081-82). The blood tested positive for ethanol- 0.03%, but "we reported it as zero point zero six percent; again, because it was a dilution times two" (Tr. 1035-36; 1038-39; 1041). Though he has been employed for fifteen years by the Suffolk County Medical Examiner's Office (Tr. 1009), and has tested, "in the thousands" (Tr. 1012), blood samples "for the presence or absence of alcohol or drugs" (Tr. 1012), this was "the first time" he "ever diluted a*** DWI [hospital] blood sample" (Tr. 1 082). The significance of testing "whole blood" as opposed to serum or plasma is 35 to be found in the New York administrative code, which Mr. Macri testified, states that a 9/10's reduction has to be made when testing serum or plasma (Tr. 1044-47). Because he claimed not to have tested anything other than whole blood, the appropriate 9/1 O's computation was not made which, had it been, would have reduced 0.06 test result to 0.05 -- a lower blood alcohol content (Tr. 1046-47).13 Mr. Macri was also aware that, under the New York State administrative code (Part 59), the vial or tube must contain "a solid anticoagulant," which the hospital tubes did not(Tr. 1 056), and that a "non-alcoholic swab" be used to clean the area the blood was taken from (Tr. 1 056-57). DWI kits contain iodine swabs which are non-alcoholic (Tr. 1 056), but the hospital tube -- the red-top tube -- an alcoholic swab was used (Tr. 1 056-57). The tests were performed using "gas chromatography flame ionization detector" (Tr.1014; 1104), an instrument which tests for ethanol "as well as other volatiles" (Tr. 1 049-50). Gas chromatography, which is "the common method you use for alcohol testing" (Tr. 1104), "tells you its ethanol, which is drinking 13ln relevant part 10 N.Y.C.R.R. §59.2 (Part 59) (Techniques and methods for determining blood and urine alcohol) states that: "(a) All blood and urine alcohol determination shall be made by quantitative methods and reported as whole blood alcohol concentration (BAC) to the second decimal place as found * * *. If specimens other than whole blood are analyzed the following conversions shall apply: *** (2) nine tenths of the determined concentration of alcohol in the serum or plasma shall be equivalent to the corresponding BAC." 36 alcohol" (Tr. 1 050), but, Mr. Macri acknowledged, "it could be from a different source; it could be from bacteria that has grown" (Tr. 1 050). Thus, insofar as testing for blood alcohol content is concerned, the better practice is to test the sample "as close to the time of collection as possible" (Tr. 1 079). 14 Michael Katz is the assistant to the chief toxicologist, Suffolk County Medical Examiner's Office, toxicology laboratory (Tr. 1233), and was proferred as an expert witness (Tr. 1230).15 140n cross-examination, Mr. Macri re-confirmed testimony that: the sample, taken on May 30, 2008, was received by the Suffolk County Toxicology lab on June 3, 2008 (Tr. 1079; 1096); the sample was not tested, after being diluted, until June 25, 2008 (Tr. 1 080); the sample did not contain a blood preservative or a solid anticoagulant (Tr. 1 088). Rather, it contained "the opposite, a clotting agent" (Tr. 1 080). Mr. Macri further testified on cross-examination that unlike the red-top vial used by Stony Brook in this case, the gray top tubes in the DWI kits, used by the Suffolk County Toxicology Lab, has an anti-coagulant, potassium fluoride, in it, to make sure the blood does not clot (Tr. 1 055), and a blood preservative -- sodium fluoride (Tr. 1 055). This is important "to make sure that glucose does not get converted into alcohol" (Tr. 1056). If the sample is heated "and there's glucose in there, there would be a process of fermentation, that could tum sugar into alcohol" (Tr. 1 056). According to Nurse Gercke, Baby had "higher than normal" glucose levels (Tr. 616) and was hyper glycemic-- having an "excessive amount of glucose" in her system(Tr. 616) which could have been caused by the hydrocortisone given to her at the hospital (Tr. 615-19). Baby 's urine tested "positive for alcohol, low value" (Tr. 620). Defendant-Appellant's urine toxicology was negative (Tr. 620). 15Defendant-Appellant's objections to Mr. Katz's testimony were overruled (Tr. 1230-31). Counsel objected to the testimony, which was to be a re-run ofMr. 37 As the supervisor making the toxicology decisions in Defendant- Appellant's case (Tr. 1233-36; 1240), Mr. Katz was familiar with her case. He confirmed that his department tested a DWI blood kit for blood drawn from Defendant-Appellant on May 30,2008, at 11:15 p.m. (Tr. 1241), and a limited volume hospital sample blood was taken from her "much closer to the accident" (Tr. 1241). He also confirmed that: the DWI blood kit tested negative for alcohol but there was "an indication of clonazepam" and morphine, which was later discounted when Mr. Katz, and his department, learned that the hospital gave morphine to Defendant-Appellant (Tr. 1242; 1286); Defendant-Appellant's hospital blood tested positive for alcohol- 0.06%, and the baby's blood, which was drawn two hours after Defendant-Appellant's blood, was 0.03%; Defendant- Appellant's hospital blood tested positive for Clonazepam -- 12.52 micrograms/liter (Tr. 1242-43; 1265-66; 1296). And, because the baby's blood was part of the same circulatory system as Defendant-Appellant, Defendant- Appellant's hospital blood and the baby's hospital blood were deemed to be Katz's testimony at the first rial, in that "Mr. Katz did not perform any of the tests that were performed on any of the three samples in this case" (Tr. 1229), and that "he doesn't even recall seeing the tube in question" (Tr. 1229). In short, counsel's objection was that "this testimony is strictly bolstering" (Tr. 1230). The trial court reasoned that "virtually every forensic scientist that has testified in this case indicated that they reported directly to [Mr.] Katz and specifically did so in this case" (Tr. 1230). 38 consistent (Tr. 1312). Mr. Katz, having reviewed the hospital records, was aware that, on May 30, 2008, Defendant-Appellant's urine was tested at the hospital at 9:12p.m. and it was negative (see Defendant's Exhibit G). But by that time, he explained, one would expect the alcohol to have dissipated (Tr. 1264-66; 1302-03). He did not know, however, when the urine tested was collected. He assumed it was collected at 9:12p.m. when it was tested (Tr. 1262-68; 1303). Also, having reviewed the hospital records, Mr. Katz opined that Defendant-Appellant had consumed at least three alcoholic drinks ("gin, vodka, scotch" [Tr. 1260]) within an hour of the accident. Less conservatively, Defendant-Appellant had four or five drinks within that time frame (Tr. 1260-62). Though clonazepam is considered to be "long acting" (Tr. 1262), it cannot be determined, from blood test results indicating its presence, when clonazepam was ingested (Tr. 1290-91). Mr. Katz knows what the properties are of alcohol and clonazepam, and what they are capable of doing (taken separately or together), being that they are central nervous system depressants (Tr. 1259-60; 1262-63). He believed that "someone in a point zero six [hac] and 12.5 clonazepam would have some degree of impairment" (Tr. 1263), acknowledging that impairment cannot be determined solely on the basis of test results (Tr. 1297-1300). Physical observations are 39 important, ~, "I would consider the possibility of someone staggering that they were impaired" (Tr. 1300). Mr. Katz was familiar with the administrative rules and regulations governing the collection of urine and blood samples by law enforcement officers and testing of those samples for the presence of alcohol and drugs-- Part 59 (Tr. 1249-50). Part 59 is written in terms of whole blood, but permits testing of serum plasma or urine which requires that then test results be mathematically adjusted according to a set number-- "conversion factors" (see 10 N.Y.C.R.R. §59.2[a][1][2]; Tr. 1253; 1255; 1256; 1274; 1277; 1278-80). Also Part 59 requires that, "if a blood specimen is to be collected for analysis, an acqueous solution of a nonvolatile antiseptic shall be used on the skin. Alcohol or phenol shall not be used as a skin antiseptic" (10 N.Y.C.R.R. 59.2[d]; Tr. 1252-53). Part 59 does not require that the vial used to collect whole blood contain a solid anti-coagulant (potassium oxylate) to prevent clotting, or a preservative (sodium fluoride) "to help inhibit the breakdown of glucose and the production into alcohol" (Tr. 1251). Though both substances are contained in the two gray- top vacutainers in the DWI blood kit, to facilitate testing (Tr. 1251; '1283-84), according to Mr. Katz, the sample is not invalidated if the vial did not contain those substances: "You can perform an alcohol analysis on samples that did not 40 contain these two substances" (Tr. 1251). Moreover, if an isopropanol swab is used, instead of a nonalcoholic swab, when collecting blood, according to Mr. Katz, the test would not be invalidated because "in our lab * * * we can distinguish between isopropanol and [ethanol] very easily" (Tr. 1252) and "[i]t doesn't mean just because you use an isopropanol swab that you are going to get contamination. It dries pretty quickly. But just in case, they suggest not using it" (Tr. 1253). The red top vial in Defendant-Appellant's case did not contain an anti- coagulant or preservative (Tr. 1282). Moreover, at least three weeks elapsed between the time the toxicology laboratory received Defendant-Appellant's and the baby's, samples, and those samples were tested in the Suffolk County laboratory (Tr. 1241-43; 1258-1259; 1281-82). Mr. Katz rejected, as being "unreasonable" (Tr. 1316), the possibility that the samples tested positive for ethanol, even-though alcohol was not consumed (Tr. 125), because of fermentation, i.e., "the conversion of glucose or simple sugar to alcohol," particularly in cases where a blood preservative is not used (Tr. 1251, 1257-58; 1259; 1280-81), contamination or transfusion (Tr. 1312-16). 4. Medical Evidence. Dr. Hajar Sims-Childs is a Deputy Medical Examiner in the Suffolk County 41 Medical Examiner's Office (Tr. 1391). Autopsies were performed at the Suffolk County Medical Examiner's Office on Robert and Mary Kelly and on Baby __ by two per diem doctors, Drs. Prial and Tepper (Tr. 1394-95; 1431-32). Over Defendant-Appellant's confrontation objections (Tr. 138-89), the autopsy reports, People's Exhibits 80, 81 and 82, were admitted into evidence, as redacted (Tr. 1389, 1396). Dr. Sims-Childs reviewed their autopsy records and testified as to their respective causes of death (Tr. 1404-25). In her opinion, to a reasonable degree of medical certainty, the cause of death as to each of the Kellys was "blunt impact injury" consistent with having been involved in a motor vehicle accident (Robert Kelly) and"complications of blunt impact injuries*** meaning all of the things which follow the injuries, such as*** cardiac arrest leading to hypoxic injury and development of bronchial pneumonia. All of these are complications of the injuries" (Mary Kelly) (Tr. 1427-28). Mr. Kelly died at the scene (Tr. 1404); Mrs. Kelly died at the hospital after being taken off of life support one month after the accident (Tr. 1428-30). Regarding Baby ----·' Dr. Sims-Childs opined to a reasonable degree of medical certainty that "the cause of death was prematurity [her gestational age being 34 weeks and full gestation being 40 weeks (Tr. 1405; ~ 1439)] and hypoxic encephalopathy, due to placental abruption ['a premature 42 separation of the placenta from the uterus' which can cause ischemic-hypoxic encephalopathy, a lack ofblood flow and oxygen to the brain (Tr. 1408, 1411-12; 1438; 1445-46)] due to maternal blunt force trauma" (Tr. 1411; 1446), meaning "an infant in utero and blunt force trauma or blunt injury to the mother caused these changes which affected the fetus as far as being born prematurely and having hypoxic injury" (Tr. 1411). Dr. Sims-Childs's opinion was based on the information she had "that there was a front and head-on collision between two motor vehicles; that the mother of the infant was the driver of one of the vehicles, seated in the front seat driver position. Based on the sort of impact and forces which would occur in that situation, it's expected that a placental abruption can occur. Reviewing the medical records of the infant and also the autopsy, it was established that the infant does have the changes which would be expected in an infant born premature from a placental abruption. And based on these things I was able to conclude that the cause of death was as stated" (Tr. 1414; 1450). 16 16Dr. Sims-Childs, whose "exposure in pediatrics," and OB/GYN, as part of the "normal general medical training" was "limited" (Tr. 1450-51 ), assumed that Defendant-Appellant's "thirty percent" placental abruption (Tr. 1417) was caused by the motor vehicle accident (Tr. 1450). She was unaware that Dr. John Petraco, Defendant-Appellant's OB/GYN, testified, as a People's witness, that he was not able to determine to a reasonable degree of medical certainty "whether or not the placental abruption was the cause of this accident or the accident was the cause of 43 Without objection, Dr. Sims-Childs also opined about the effects on an unborn baby of alcohol "[i]f a mother ingests alcohol" (Tr. 1420), stating that, "[b ]ecause alcohol does freely cross the placenta, it can cause developmental abnormalities of the infant, as well as intellectual and cognitive abnormalities when the child is born" (Tr. 1420). Therefore, "if a mother ingests alcohol," there will be "comparable levels of it in the baby" (Tr. 1421). But the internal/external examinations of Baby _____ disclosed no abnormalities,~' none of the signs associated with fetal alcohol syndrome (Tr. 1441-43); however, the syndrome is not "usually" diagnosed at birth-- "as they are growing up and developing then they are assessed" (Tr. 1452). There was some indication in Baby ______ ' s records that she may have had Maple Syrup urine disease -- a metabolic defect showing increased levels of"an essential amino acid" (Tr. 1448) leucine, which, as a result of"prolonged exposure to elevated leucine," could result in "clinical encephalopathy" (Tr. 1453). In Dr. Sims-Child's opinion, this would have no "effect on the testing or metabolization of*** ethanol" (Tr. 1454). Dr. John Petraco is a partner in Suffolk Obstetrics and Gynecology, LLP, "a the placental abruption" (Tr. 1451) (see post, at 46-47). 44 physician single specialty group, obstetrics/gynecology" (Tr. 504-05). Beginning on November 1, 2007, Defendant-Appellant first came to Suffolk Obstetrics and Gynecology "for this pregnancy" (Tr. 510; 537). Dr. Petraco saw her for the first time on March 20, 2008 (Tr. 51 0). As a matter of practice, when a patient comes to the group "newly pregnant," information is given to the patient which "usually" includes some form of counseling "not to partake in any alcoholic beverages" (Tr. 511 ). Also "we should review what a patient, is taking, from a medication standpoint, what they might be taking outside of what's prescribed. And the risks and benefits associated with those" (Tr. 11-12). Advice sometimes is given about seatbelt use -- if it came up in conversation, "I usually tell them that they should use seatbelts whenever driving or as a passenger" (Tr. 512-13 ). Dr. Petraco did not see Defendant-Appellant "every visit" (Tr. 513). But in reviewing her medical records (People's Exhibit 56 [Tr. 506-08]), Defendant- Appellant had "a few things in [her] [medical] history that would put her at increased risk for certain types of issues" (Tr. 514 ), viz: "her history of having had gastric bypass surgery" which would complicate C-section surgery should it become necessary (Tr. 514). Other than that, according to Dr. Petraco, "[t]here 45 wasn't a very high risk in this pregnancy" (Tr. 515). Though this was not a high risk pregnancy, there were indications in her medical record of complaints of back pain, bleeding, urinary tract infection, and visits to Stony Brook Hospital and the ER at St. Charles Hospital (Tr. 515-23; 556-63). Also she had an unusually high number of sonograms -- 8 -- during this pregnancy (Tr. 554-56). The routine number is 3 (Tr. 552-54). Defendant-Appellant's medical records reflected a nurse's note dated May 30, 2008, at 11:30 a.m., indicating that Defendant-Appellant called Suffolk Obstetrics and Gynecology and requested "an early induction [of labor] * * * due to conflict with school programs she's attending and the amount of absences she allowed" (Tr. 530-53). Nothing was mentioned in the nurses's note about pain (Tr. 532). A "pretty common" condition that occurs in pregnancies is "placenta previa," which, if discovered "earlier in pregnancy, oftentimes it will resolve or change its location" (Tr. 524). In March, 2008, during Defendant-Appellant's pregnancy, ''there was a suggestion of a placenta previa" in a sonogram, which apparently was "resolved" a month later (Tr. 525-26). Shortly after the March sonogram was taken, Dr. Petraco signed a Family Medical leave Act note for Defendant-Appellant recommending that she "'stop 46 work until feeling less discomfort from work"' (Tr. 527-29). But because the suspected placenta previa was resolved, and "there was [no other] medical reason" for it, "there was no reason to schedule a C-section" (Tr. 531 ). Dr. Petraco explained what is a placental abruption: "A placental abruption is a condition whereby the placenta either partially or completely separates from the wall of the uterus prematurely. What I mean by prematurely,' it's before the baby delivers. Usually it will separate after the baby is delivered. If it separates before delivery, it can compromise the ability ofth[e] oxygen-nutrient transfer [between mother and fetus]. If there is a partial abruption, it can be a small partial abruption with no real major problems. If it's a complete abruption, clearly if the placenta is no longer attached to the uterus there can be no communication between baby and the uterus. And that's*** a real big problem. And then, obviously, there are various degrees of a partial, where either a small separation or a bigger separation can occur" (Tr. 533; 563-64). Dr. Petraco agreed that "there [is] such a thing as spontaneous placental abruption" (Tr. 564), meaning that [i]t's an abruption that*** happens without any precipitating factor that we can really identify. Such as trauma*** [it] OJust happens" (Tr. 564-65). As possible consequences, the mother could experience intense pain, loss of blood causing possibly lethargy or lightheadedness (Tr. 565), a drop in blood pressure (Tr. 566), particularly if"there's enough blood loss" (Tr. 47 566), and fainting (Tr. 566). There "[c]an ***be an occasion" in which a placental abruption "doesn't show itself on an ultra sound or lab study" (Tr. 566). "Motor vehicle crashes" are a concern for pregnant women -- "The clinical significance of an abruption can be quite marked" (Tr. 534). Conceding that he is "not a motor vehicle accident expert" and "this is not my area of expertise" (Tr. 535), Dr. Petraco described the danger, and the possible effect of not wearing a seatbelt: "Well, presumably if you have a placenta attached to the wall of the uterus and you are moving at a high velocity and all of a sudden you stop moving, what would happen is there's going to be lots of shifting and shearing and perhaps the uterus is moving in one direction and the placenta is moving in another, or that rapid deceleration could create a shearing effect which cause the placenta to either partially or completely separate from the wall of the uterus" (Tr. 534-35). Regarding seatbelts, Dr. Petraco expressed the view that, "if somebody is unrestrained, their potential for trauma is greater, so any trauma can cause an abruption," (Tr. 535), giving as an example "if someone was thrown from their vehicle forty feet and hit the ground" (Tr. 535). Knowing that Defendant-Appellant suffered a placental abruption on May 30, 2008 (Tr. 550), when Dr. Petraco was asked if he could "state with any degree of medical certainty whether or not [Defendant-Appellant] had a spontaneous 48 placental abruption which caused the accident or if there was an abruption that was caused by the accident" (Tr. 566-67), he could not state "[t]o a medical degree of certainty" "what happened, I don't know what happened" (Tr. 567) "No way for me to know that" (Tr. 579). Dr. Petraco was not aware that clonazepam had been prescribed for Defendant-Appellant, and there was nothing in her medical records to indicate to Suffolk Obstetrics and Gynecology, LLP., that the drug had been prescribed or that she was taking it from the beginning of her pregnancy in November 2007 until May 2008 (Tr. 537-42). 17 Dr. Petraco is familiar with "Drugs & Pregnancy & Lactation"-- "it's a resource whereby you can get as much clinical information as you can regarding the potential risks associated with its [drug] use during pregnancy and lactation" (Tr. 543). In the book, clonazepam is rated as a "class D risk factor ['A' being the least harmful to the baby]" (Tr. 543), meaning that "there's evidence that it could affect or harm a fetus. However, the benefits of using it in pregnant woman may justify its use during the pregnancy, if there's a medical reason that's significant 17Admitted into evidence as People's Exhibits 53, 54 and 55, over Defendant-Appellant's objections, were records from CVS Pharmacy, Echo Pharmacy and Rite-Aid Pharmacy showing Defendant-Appellant's pharmacy history relating to clonazepam. The records were shown to Dr. Petraco during his testimony (Tr. 496-501; 537-41). 49 enough to give it" (Tr. 545). 5. Pharmacological Evidence. Over repeated defense objections, People were permitted to present evidence that, between November, 2007, and May, 2008, Defendant-Appellant filled prescriptions at several pharmacies for clonazepam and alprazolam (see Tr. 410-16; 1322-34; 1830-33; 1947-49; 2167-69). 18 Supervising Pharmacist at Quality Pharmacy, in Selden, New York, Mayur Shah (Tr. 421-22), produced an electronic file (Tr. 424-26), admitted into evidence as People's Exhibit 50 (redacted), over Defendant-Appellant's objections (Tr. 428- 31), covering the period November 1, 2007, to June 30,2008 (Tr. 431). According to the record, on March 1 7, 2008 (the first "fill date"), Quality Pharmacy filled a prescription for Defendant-Appellant for 60 tablets (a 30 day supply) of the drug, clonazepam - a "longer acting benzodiazepine" used for panic attacks, anxiety and some epilepsy or seizure activity, and some nerve disorders 18Marked as Court Exhibits V, VI, VII, VIII were the unredacted subpoenaed pharmaceutical records, pertaining to Defendant-Appellant, from CVS, Rite-Aid, Echo Pharmacy, and Quality Pharmacy, respectively (Tr. 419). The records admitted into evidence were the same records after redaction (Tr. 419). The records were admitted into evidence, over defense objections, as People's Exhibit53, 54, 55 (Tr. 496-98), and shown to Dr. Petraco during his testimony (Tr. 537-42). 50 {Tr. 431-34; 436-37). Prescribing the medication was Dr. Chandra Shekher {Tr. 434; 552-53 [Petraco ]). The next "fill date" was May 1, 2008, for the same drug at the same strength, but for 15 pills with no refills. The prescribing physician again was Dr. Shekher {Tr. 434-35). Typically, when a prescription (such as for clonazepam) is filled, an "information paper," like People's Exhibit 51 {Tr. 438-43, objected to by the defense) is given to the patient. But Mr. Shah, who had no recollection of Defendant-Appellant, or speaking with her or Dr. Shekher, and had "no idea" why clonazepam was prescribed for her {Tr. 449-51 ), did not know whether the information normally given to the patient, was actually given to Defendant- Appellant (Tr. 440-42). 6. Accident Reconstruction and Related Evidence. Robert Genna is the Director of the Suffolk County Crime Lab, which is a division of the Suffolk County Medical Examiner's Office. Among other things, Mr. Genna is involved in crash investigations, and reconstruction, in which he attempts to determine how and why a motor vehicle collision occurred {Tr. 1462- 67). 51 Though the accident in this case occurred on May 30, 2008, Mr. Genna did not go to the scene, or view the two vehicles involved, until some six months later, on November 18, 2008 (Tr. 1580). His explanation was the backlog of cases, which was "probably part of the reason" (Tr. 1581). Moreover, it was not until June 21, 2011, after the first trial (March, 2011) that Mr. Genna even became aware that the vehicle driven by Defendant-Appellant had an Event Data Recorder (commonly known as the black box), which supposedly recorded data about the vehicle's movement for the seven seconds leading up to the crash (Tr. 1485-87; 1535-40; 1580).19 And, it was not until August 22,2011 (Tr. 1493), that Mr. Genna had the "crash vehicles" brought back to the scene, and had them "positioned ***at one second increments to show where the vehicles would have been with respect to each prior to the collision occurring" (Tr. 1480). In Mr. Genna's opinion, based on his investigation in this case, on May 30, 2008, the Kellys's vehicle (a Ford Taurus) was on Whiskey Road traveling in the 190n cross-examination Mr. Genna testified that, in general, when he gets a new accident case, one of the first things he does is to determine whether the vehicle involved has an event data recorder (Tr. 1535). Prior to testifying at the first trial, Mr. Genna never attempted to contact Nissan --the manufacturer of the vehicle driven by Defendant-Appellant (Tr. 1537). In fact, he testified at the first trial that he was "under the impression that this module did not store crash data" (Tr. 1537; 1539). He determined in his investigation that the Ford Taurus driven by the Kellys did not maintain crash data, either (Tr. 1539-40). 52 west bound lane, and Defendant-Appellant's vehiqle (a Nissan Sentra) was in the east bound lane; within two seconds of the head-o~ crash ("a direct hit" [Tr. 1578]) between the two vehicles, Defendant-AppJllant's vehicle, which continued ' I to move in the same direction, had crossed a double-yellow line, and moved into the westbound lane; and, at the moment of impact, the Kellys' vehicle was moving at the rate of 15-20 miles-per-hour and Defendant-Appellant's vehicle was moving at the rate of 44 to 49 miles-per-hour (Tr. 1480-85; 1489-92; 1495-96; 1509-1511; 1516; 1559-63; 1577-78). Referring to the crash data "in the black box" for the seven seconds leading up to, and including, the crash, Mr. Genna noted that, "one second prior to crashing the Nissan exhibited a speed of fifty miles per hour" (Tr. 1487). Also according to the crash data (Tr. 1521-24), for the seven seconds being recorded, Defendant-Appellant's vehicle was traveling at the rate of between 48 and 50 miles-per-hour and at the 50 mph level there was a "no percentage throttle indicating that the operator lifted their foot off of the gas pedal for a very short period oftime" (Tr. 1521). Though he conceded that there are many possibilities for what could occur in a medical emergency, Mr. Genna rejected the possibility that the accident in this case was caused by such an emergency (Tr. 1523; 1564-65). 53 On July 21, 2011 -- some three years after the accident (Tr. 343), not having been asked before this time (Tr. 378-79), Benjamin Foss (a Dealer Technical Specialist employed by Nissan North America, as a Nissan Master Technician [Tr. 338]), went to the Suffolk County Impound Yard (Tr. 343), and retrieved (downloaded) from an Event Data Recorder (EDR) (the black box) in a 2008 Nissan Sentra, approximately seven seconds (Tr. 349) of the data the EDR captured prior to the collision (Tr. 341-47; 349; 363-64; 368-69), including vehicle speed and throttle; acceleration and braking, and seatbelt data, i.e., whether the seatbelt was "latched at the time of impact (Tr. 349; 364-66). According to the information Mr. Foss downloaded from the EDR, the seven seconds immediately preceding the collision Defendant-Appellant's 2008 Nissan Sentra was traveling at between 48 and50 miles-per-hour-- the latter speed was maintained for the 3 seconds before the collision; the throttle application was 20% at the moment of impact; the braking switch status was "off'; and the seatbelt status was "off' (Tr. 365-66). Mr. Foss was also aware, when he inspected the vehicle, that the 2008 Nissan Sentra was "blue-tooth capable" (Tr. 349) and a photograph (People's Exhibit 43) taken by him shows the blue-tooth steering-wheel controls, the blue- 54 tooth features on the steering wheel. 20 Mr. Foss was familiar with the EDR, and how it operated {Tr. 341-42); however, he had "no idea" how accurate was the data reported by the EDR, and did not know if there is a percentage of error (Tr. 375-76). B. The Defense. Richard, Sr., and Nancy, Kaiser, have their home in Ridge, New York, living there with their two sons, Richard, Jr., and Christopher, and Nancy's sister, Gladys. Richard Jr.,and Defendant-Appellant, are engaged to be married and have two sons. Defendant-Appellant has another son, {Tr. 1755-56). Richard Sr., and Nancy were preparing living quarters in the basement of their house for Richard, Jr., Defendant-Appellant, and her then one-child (Tr. 1756; 1758-59). 20Lead Detective Roy Baillard (Tr. 727), whose investigation of this case ended on December 9, 2008 {Tr. 775), never bothered to investigate whether Defendant-Appellant's cell-phone, which was recovered from the driver's foot well ofDefendant-Appellant's vehicle {Tr. 275-79; 691-93; 694), was "blue-tooth enabled" (Tr. 768), or whether her vehicle had a "built-in wireless blue tooth capacity" {Tr. 769). Nor did the lead Detective try to find out whether the vehicle had "what's known as a black box" {Tr. 769). The two detectives assisting Det. Baillard in the investigation of this case, viz: Detectives Acer and Palozzolo, ended their participation on the day it began- the day of the accident, May 30, 2008 {Tr. 727-28). 55 The night before the accident, on May 30, 2008, Richard, Jr., and Defendant-Appellant had dinner with the Kaisers at their Ridge, New York home (Tr. 1756-57). Mrs. Kaiser was making preparations for a baby shower she was "throwing" for Defendant-Appellant "the following weekend" (Tr. 1757). Defendant-Appellant did not leave .the house at anytime that night, and Mrs. Kaiser saw Defendant-Appellant "periodically that night*** in and out" (Tr. 1757). Mrs. Kaiser went to sleep that night "probably about 11 :30" and woke up at 4:45 to leave at 5:45 for work at Bellehaven Center for Rehabilitation & Nursing Care -- a nursing home where she is "a recreational therapist aide. We plan activities and different events for residents" (Tr. 1755). At no time on the night of May 29, 2008, did Mrs. Kaiser see Defendant- Appellant have any type of alcoholic beverage (Tr. 1758), nor did she see Defendant-Appellant taking any medication (Tr. 1758-59). Defendant-Appellant did not appear to her "to be impaired*** in any way" (Tr. 1759). *** *** *** On May 30, 2008, Defendant-Appellant went to Michael's Arts & Crafts Store, in Rocky Point, New York, on Route 25A (Tr. 1654; 1667).21 The store is 21According to Det. Roy Baillard, Michael's is about 3.8 miles away or north of the accident scene (Tr. 716). Retired Detective Michael Carmody testified as a defense witness that he drove from Michael's to the accident scene and the drive 56 busy-- it "get[s] a decent amount of customers every day" (Tr. 1660). "Pregnancy items" (Tr. 1660) are sold in that store. At, or about and between, 12 noon and 2:00 p.m. (Tr. 1648; 1654; 1669), Defendant-Appellant interacted with three store employees: Deborah Derocher, the manager-in-charge for that day (Tr. 1647-48); Virginia Gordon, a sales person (Tr. 1653, et seq.); and Destiny Martin, "'the front end supervisor that took care of the front end of the store, returns"' (Tr. 1667-68).22 Ms. Derocher approved a transaction for Defendant-Appellant, allowing her "to use multiple coupons for purchases" (Tr. 1648). She explained that this was "a gesture, a kind of gesture *** customer service, a gesture" (Tr. 1649). Ms. Derocher described Defendant-Appellant as being "very pregnant. She was well-groomed, spoke nicely" (Tr. 1649). There was "nothing unusual" about her -- Ms. Derocher noticed nothing "whatsoever", "if she was impaired in any way with respect to her speech" (Tr. 1649), and while she was in the store, Defendant-Appellant was "very" pleasant (Tr. 1650). Ms. Derocher did not "smell any alcoholic beverage on her at any time" (Tr. 1651 ). took about 7Ih minutes (Tr. 1643-44). 22Ms. Martin was not able to appear and testify at Defendant-Appellant's second trial. On agreement by the District Attorney and the defense, Ms. Martin's testimony from the first trial (direct and cross) was read to the jury (Tr. 1665-77). 57 Ms. Gordon had an opportunity to interact with Defendant-Appellant in the store (Tr. 1656). She did not "observe or notice anything about her" and did not "notice if [Defendant-Appellant] was impaired in anyway" (Tr. 1656). Ms. Gordon did not smell alcohol on Defendant-Appellant's breath (Tr. 1656). Destiny Martin also interacted with Defendant-Appellant in Michael's (Tr. 1669-70). She did not notice "'any inappropriate actions on her [Defendant- Appellant's] part,"' adding that "'I would have remembered that"' (Tr. 1670). Defendant-Appellant was "'steady on her feet"' (T. 1670). Ms. Martin did not smell "'any alcohol on [Defendant-Appellant's] breath"' (Tr. 1670), which is something Ms. Martin was "'particular[ly] sensitiv[e] to*** [because] [her] grandma drank a lot when she was growing up. [From this experience] [she] can tell when someone is drinking"' (Tr. 1670-71).23 *** *** *** On May 30, 2008, Frederick Purdy, "a flight paramedic for the Suffolk County Police Aviation and Transport paramedic with [Stony Brook] hospital" 23Lead Detective Baillard received information from an attorney, Peter Creedon, (Tr. 739), concerning Defendant-Appellant, and her activities immediately prior to the automobile accident including her visit to Michael's. According to Detective Baillard he did little to pursue that investigative lead, which would have shed light on her condition shortly before the accident (see Tr. 716-21; 739-44; 781-85). 58 (Tr. 1687-88), assisted in transporting by helicopter Defendant-Appellant to Stony Brook (Tr. 1687-90). He conducted an evaluation ofher and rendered medical care to her (Tr. 1690). At 3:21 p.m. and, again, five minutes later, he examined her eyes, noting that "they appeared to be normal, equal and reactive" (Tr. 1691 ). There was not "sluggishness in her eyes" (Tr. 1691 ). Her pulse was elevated "probably due to the stress*** [a]nd the pain" (Tr. 1692). She was "alert to [his] voice" and was responsive (Tr. 1692-93). He had no difficulty understanding her (Tr. 1692-99). During the ten minute helicopter ride, Mr. Purdy was "between a foot, foot and-a-half, twelve to eighteen inches" from the patient (Tr. 1694). He did not smell alcohol on her breath (Tr 1694). Had he done so, Mr. Purdy would have noted it in his report (Tr.1694, 1700). Mr. Purdy noted in his report information he received from "the ambulance crew" that Defendant-Appellant was wearing a seatbelt (Tr. 1695).24 *** *** *** 24Detective Baillard did not speak to Mr. Purdy, nor did he even know who he was, and, further spoke to no one who was on the helicopter that transported Defendant-Appellant to Stony Brook Hospital (Tr. 754). And had he done so he would have learned that Mr. Purdy had information that Defendant-Appellant was wearing a seatbelt and that other people in close proximity to her (not exposed to air bag powder) did not smell alcohol on her breath. 59 Dr. Michael Paccione was the trauma surgeon, at Stony Brook Hospital University Medical Center, in Defendant-Appellant's case when she was "a trauma who presented to our hospital" on May 30, 2008, at approximately 4 p.m. {Tr. 1724-28). A CAT scan ofDefendant-Appellant's head confirmed that she had a subdural hematoma - "a blood clot outside the brain pushing on the brain" {Tr. 1725-26; 1737-38). During the CAT scan, Defendant-Appellant "became hypotensive" (Tr. 1726) and her unborn baby's heart rate "was decreased" {Tr. 1726). The decision was made to perform "an emergent delivery with a C-section" {Tr. 1726). Based on Defendant-Appellant's Glasgow Score, which is an "evaluation of the patient's ***neurological status" {Tr. 1727), Dr. Paccione determined that "she might be slightly disoriented but still awake and alert and had all her extremities" {Tr. 1727). Anesthesia was administered including Versed -- a benzodiazepine, a muscle relaxant-- rocuronium, and a narcotic- Fentanyl {Tr. 1229). Post- operatively, Defendant-Appellant was given morphine "for patient controlled analgesic. And she had PCA for pain management post operatively" {Tr. 1729). Defendant-Appellant was in surgery for about four hours (Tr. 1728-29). "Her right upper extremity, radius and ulnar [sic]" (forearm) was broken (Tr. 60 1729-30). Dr. Paccione recalled no conversations suggesting that Defendant-Appellant had alcohol on her breath and he does not "generally smell for the patient's breath" (Tr. 1734; 1748-49; 1754). A toxicology was done on Defendant- Appellant's urine at about 9:12p.m. and the results were negative for ethanol and benzodiazepine (Tr. 1734-35; 1746-48; 1754). *** *** *** At defense counsel's request (Tr. 1590, 1624), retired homicide detective Michael Carmody twice went to the Suffolk County impound yard to inspect Defendant-Appellant's Nissan Sentra and to recover evidence, including sales receipts from Michael's Craft Store, and any purchases she may have made from Michael's on May 30, 3008 (Tr. 1589-90; 1601-02; 1624). Mr. Carmody retrieved eight sales receipts from Michael's, date stamped May 30,2008, and time stamped 1:10 p.m.; 1:12 p.m.; 1:15 p.m.; 1:16 p.m.; 1:46 p.m.; and 1:51 p.m. (Tr. 1594-97; 1627).25 Also found, retrieved and photographed were Michael's Craft Store bags, and lottery tickets, some of which 25Photographs of the receipts taken by Mr. Carmody and the receipts were admitted into evidence (Tr. 1594-97; 1627). 61 were "scratched off' (Tr. 1598-99).26 Lastly, he found birth announcements in the trunk which he also photographed (Tr. 1599-60).27 Also at defense counsel's request, on January 31, 2012, Mr. Carmody videotaped (Tr. 1604), "the direction of travel from the shopping center [Kohl's Shopping Center where Michael's Craft Store was located (Tr. 603)] up Route 21 heading south * * * to Whiskey Road, and * * * eastbound on Whiskey Road to the accident site" (Tr. 1602; 1609-16). He described Whiskey Road as going east and west at the intersection -light ofRoute 21 and Whiskey Road (Tr. 1612). The area is "heavily wooded," "it makes a lot of sharp turns. You see cars; occasionally there are hunters" (Tr. 1611). The road is two lanes, one each going east and west (Tr. 612), and there are a few hunting trails off of the roadway (Tr. 1612, 1646). The road is divided by a double yellow line (Tr. 1610). *** *** *** Robert Alan Middle berg has been employed for twenty-one years by NMS Labs in Willow Grove, Pennsylvania (Tr. 1769). At present he is the laboratory director and vice president of quality assurance, as well as a practicing forensic 26Photographs of these items, and some of the items, themselves, were admitted into evidence (Tr. 1598-99). 27The photograph of the birth announcements was admitted into evidence (Tr. 1599-1600). 62 toxicologist (Tr. 1769). Dr. Middleberg holds a masters degree in chemistry, and a Ph.D in pharmacology. He has two board certifications-- one from American Board of Clinical Chemistry in Toxicological Chemistry (Tr. 1766). He is also the chair of a group, called SWG Tox, which "has been mandated, more or less, to be formed by the federal government to come up with or develop standards of practice in forensic toxicology in the United States" (Tr. 1766-67). And, he has a certificate of qualification from the New York State Department of Health in forensic toxicology (Tr. 1768). Dr. Middleberg reviewed records and transcripts relating to Defendant- Appellant's automobile accident (Tr. 1771-72). He was aware that there were two samples tested, in this matter, by the Suffolk County Medical Examiner's Office (Tr. 1772). The first sample was the one taken from Defendant-Appellant at 3:44 p.m. on May 30, 2008 (Tr. 1773). In his opinion "there are both pre-analytical and analytical issues with the specimen, the analysis" (Tr. 1773). Dr. Middleberg explained that "as a toxicologist when you're looking at these kinds of pre- analytical issues, you start scratching your head a little bit, what's going on here, and do I have faith that the sample has integrity. That's what we're looking for" 63 (Tr. 1774), adding that "[i]n a normal driving-under-the influence case there are certain tubes to collect blood to prevent these other things from happening, and that's not what took place with he hospital sample" (Tr. 1774-75). Based on his review of the records, and the deficiencies he noted in the collection, preparation and testing of the "3 :44 sample," Dr. Middle berg concluded that, regarding People's Exhibit 63, the red-top tube from Stony Brook Hospital, "has lost is integrity in terms of testing for blood alcohol. There is no integrity in this tube anymore. * * * And given how it was collected and the time that passed and the sample seems to be missing, how should one interpret those findings. I don't have a good answer for that" (Tr. 1782). Regarding the second specimen -- the sample taken from Baby (Tr. 1782-83), Dr. Middleberg expressed the same opinion that the sample lacked integrity such that "I have no idea what to do with any finding you get" (Tr. 1787). In short, Dr. Middleberg expressed the view that, regarding both samples, he had no confidence that, what was reported as being found, was what was "actually found" (Tr. 1801 ). C. Rebuttal. Dr. Michael Lehrer is the Chief Toxicologist for Suffolk County working at 64 the Medical Examiner's Laboratory in Hauppauge, Suffolk County (Tr. 1953). He has a doctorate in chemistry and has been working in toxicology for some 3 5 years. He is a member of professional organizations, and, from New York State, holds a directors license in forensic toxicology in alcohol testing and other areas (Tr. 1955). He reviewed the same information as Dr. Middleberg and, though he has a "high regard for" him as a "toxicologist" (Tr. 1984-85), nevertheless Dr. Lehrer "strong[ly] disagree[ d)" with his conclusions and opinions in this case including those concerning the integrity of the blood samples taken by Stony Brook Hospital and tested by the toxicology lab in the Suffolk County Medical Examiner's Office. D. Summations and Charge. On her summation the prosecutor, whose overarching theme was that Defendant-Appellant was a "drug addicted" "self-medicating" (Tr. 2104-05) bad mother, more concerned about herself than her defenseless baby, and, for that reason, deserved to be convicted, appealed to the jurors' emotions and sympathies, while at the same time denigrating Defendant-Appellant, and the defense; instructed the jury incorrectly as to the law of recklessness and changed the People's theory of recklessness; mischaracterized the evidence; and, shifted the 65 burden of the proof to Defendant-Appellant. After summations, the court instructed the jury as to the legal principles governing their deliberations, and submitted the five counts of the indictment for their consideration, viz: aggravated vehicular homicide {Tr. 2140-46); manslaughter in the second degree (three counts) {Tr. 2146-49); and driving a vehicle while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. {Tr. 2149-52). E. Verdict. After some four days of deliberations, during which there were read-backs of testimony and further instructions, the jury found Defendant-Appellant guilty of one count of manslaughter in the second degree, relating to the death of her baby, but not guilty as to the remaining four counts. Before the jury were discharged, defense counsel argued that the verdicts were inconsistent. People opposed, and the court denied the motion to set-aside the verdict and "to send the jury back to continue deliberating on that count" {Tr. 2239-40). 66 F. Sentence. On June 22, 2012, the court sentenced Defendant-Appellant to an indeterminate term of imprisonment of three years to nine years. G. Appeal to the Appellate Division, Second Judicial Department. On appeal to the Appellate Division, Second Judicial Department, Defendant-Appellant argued that: (1) that the evidence was legally and factually insufficient to establish beyond a reasonable doubt Defendant-Appellant's guilt of manslaughter in the second degree, relating to the death of her baby, since she was acquitted of four of the five legally and factually intertwined counts in her indictment; (2) Defendant-Appellant's fair trial rights were violated by the admission into evidence of Defendant-Appellant's legal prescription medication history during her pregnancy, which included an anxiety medication for which there was no evidence that she had ever ingested that medication; (3) Defendant- Appellant's federally and State guaranteed rights to a fair trial and due process were violated by the cumulative affect of the prosecutor's summation comments; and, (4) Defendant-Appellant's sentence was based on acquitted conduct and, in any event, was excessive under the circumstances. On January 22, 2014, the Appellate Division affirmed (A. 3). 67 This appeal ensued, leave to appeal having been granted to Defendant- Appellant by the Hon. Robert S. Smith, Associate Judge (A. 2). Defendant-Appellant is at liberty, on bail pending appeal granted on January 24, 2014, by Judge Smith (A. 6). 68 QUESTIONSPRESENTEP 1. Whether a mother can be prosecuted for manslaughter in the second degree for the death of her daughter who was injured in utero but died from the injuries after being born alive? 2. Whether the evidence was legally sufficient to establish Defendant- Appellant's guilt of manslaughter in the second degree for the death of her daughter who was injured in utero but died from the injuries after being born alive? 3. Whether Defendant-Appellant's Federally and State Guaranteed rights to a fair trial and due process were violated by the admission of evidence pertaining to her legally prescribed medication and the use of that evidence to establish Defendant-Appellant's guilt? 4. Whether Defendant-Appellant's fair trial rights were violated by the prosecutor's summation comments? 4. Whether Defendant-Appellant's sentence was based on acquitted conduct and, therefore, illegal? 69 POINT ONE DEFENDANT-APPELLANT WAS CONVICTED OF A CRIME THAT WAS NOT LEGALLY POSSIBLE FOR HER TO COMMIT, UNDER ~EW YORK LAW. Defendant-Appellant was convicted, after a jury trial, of manslaughter in the second degree (reckless) for the death of her daughter, Baby ____ _, who, being born alive, died a few days later from the injuries she sustained in utero. The underlying theory of the prosecution was that Defendant-Appellant, who was then about eight months pregnant, recklessly drove her automobile, thereby causing an accident with another vehicle, which resulted in three deaths -- the driver and passenger in the second automobile, and her baby daughter after she was born alive. But the single crime Defendant-Appellant was convicted of committing -- recklessly causing the death of her daughter -- was legally impossible for her to commit under New York Law. The conviction should be reversed and the charge dismissed. A. Appealability and Reviewability As a general proposition, to be reviewable on appeal to this Court, as a question of law (see CPL 460.20), the issue presented must have been preserved by "protest [timely] registered" (CPL 470.05[2]), i.e., "at the time the error was 70 committed" (People v Boyd, 12 N.Y.3d 390, 395 [2009]), or "at virtually the earliest possible moment" (People v Finch, 23 N.Y.3d 408, 412 [2014]). The law, however, recognizes "exceptional situations" in which a point not raised by an objection in the trial court may be raised for the first time on appeal (see Cohen and Karger, Powers of the New York Court of Appeals, §199- Preservation for Review of Questions of Law, at 750 [Reprinted. 1992]. In People v Bradner, 107 N.Y. 1, 4-5 (1887), this Court wrote: "If the record discloses upon its face that the court had no jurisdiction, or that the constitutional method of trial by jury was disregarded * * * or some other defect in the proceedings which could not be waived or cured, and is fundamental, it would, as we conceive, be the duty of an appellate court to reverse the proceeding and conviction, although the question had not been raised in the court below, and was not presented by any ruling or exception on the trial." A jurisdictional issue is "a fundamental, nonwaivable defect in the mode of proceedings that could be raised by defendants on their direct appeal despite their failure to comply with preservation requirements" (People v Correa, 15 N.Y.3d 213, 222 [2010]). Or, as stated by this Court, in People v Nicometi, 12 N.Y.2d 428, 431 ( 1963 ), cited in Correa, "'Jurisdictional error'" -- "[ w ]ant of jurisdiction is a basic defect, not a trial error; it may be raised at any time and can never be waived. The record before us contains a fundamental defect in the proceedings 71 which could never be waived or cured, and such a defect in the record is disclosed upon its face [cases and internal quotation omitted]." The "fundamental defect" or "want of jurisdiction" in this case is that the crime (reckless manslaughter in the second degree, the victim being Defendant- Appellant's daughter) Defendant-Appellant was convicted of, after a jury trial, was a legally impossible, nonexistent crime (see People v Lopez, 45 A.D.3d 493, 494 [1st Dept. 2007]; People v Jackson, 49 A.D.2d 680 [ 4t11 Dept. 1975]). Stated somewhat differently, the underlying conduct the conviction was based upon, which People theorized caused the baby's death days after she was born, was not criminal under New York Law, nor could it have been. The issue presented that Defendant-Appellant was prosecuted on, and convicted of, a "nonexistent, legally impossible crime" (People v Lopez, 45 A.D.3d, at 494 [citing People v Campbell, 72 N.Y.2d 602, 605 [1988], and People v Acevedo, 32 N.Y.2d 807 [1973]), may be reviewed by this Court without a timely objection. But even if this Court were to conclude that the issue presented required preservation, that requirement was satisfied on the record. That is, prior to the first trial, Defendant-Appellant moved for omnibus relief, including the dismissal of Count Five of the original indictment, charging reckless endangerment of a 72 child (see People v Jorgensen, 26 Misc.3d 1232(A), 907 N.Y.S.2d 439, 2010WL796830 [Sup. Ct. Suffolk Co. 2010] [Hinrichs, J.]). In support of the motion to dismiss, Defendant-Appellant argued, in essence, that her daughter -- the purported victim in Count Five -- was not a "child" or a "person" when the reckless endangerment was alleged by People to have occurred. The motion court agreed, latching onto, what it perceived to be a concession, defense counsel's reference to the definition of homicide in Penal Law §125.00, which includes "an unborn child that has progressed past 24 weeks in utero" (2010WL796830, at 5). The court then explained that, "a plain reading of the Endangering the Welfare of a Child statute makes clear that it does not apply to unborn children. Had the legislature intended so, it would have included language similar to language of PL § 125.00. The People have not cited any case law which upholds a prosecution for Endangering the Welfare of a Child involving an unborn child and the Court is not aware of any" (id.). As part of its ruling, therefore, the motion court differentiated between the homicide statute, under which Defendant-Appellant was prosecuted and convicted, and the endangering statute, to show that the homicide count was prosecutable, while the endangering count was not. Evidently, the motion court was of the view that, while Defendant-Appellant could not recklessly endanger her 73 unborn child, she could, by the same conduct, recklessly cause her death. People did not appeal the dismissal of the reckless endangerment charge in Count Five of the original indictment. The argument as to both manslaughter in the second degree (reckless), and reckless endangerment of a child, however, is essentially the same. That is, if the conduct alleged by People to be reckless was not criminal as to the one count (reckless endangerment), that same reckless conduct, involving the same victim, cannot be criminal as to the second count (reckless manslaughter in the second degree). In short, as a matter of public policy, as determined by the Legislature, which includes the significant constitutional and privacy concerns arising from a state's use of the criminal laws to regulate (or micromanage) a woman's conduct/behavior during pregnancy (see Comment, Pregnancy Crimes: New Worries To Expect When You're Expecting, 53 Santa Clara L. Rev. 661 [2013]), New York has determined that a pregnant mother's care ofher unborn child is not subject to the criminal law. The conduct that has been criminalized, and identified as a homicide (see Penal Law 125.00), is self-abortion in the first degree, a class A misdemeanor-- requiring a specific intent, unlike Defendant-Appellant's crime, the mens rea being "recklessly". Indeed, as will become clear later, as the second 74 trial progressed, this case became more of a jury referendum on the prenatal care afforded to Baby ___ , than it was a jury trial to determine whether Defendant- Appellant was guilty of the crimes charged. We submit that the issue presented was preserved for appellate review (see CPL 470.05[2]; People v Feingold, 7 N.Y.3d 288, 290 [2006] ["The trial judge's decision, however, demonstrates that he specifically confronted and resolved this issue"]). Moreover, there was no requirement, for preservation purposes, that defense counsel (not the same counsel at the first trial) raise the issue at the second trial (see People v Finch, 23 N.Y.3d, at 413, supra). And, the fact that the issue now being presented was not raised at the Appellate Division does not undermine preservation (see People v Dekle, 56 N.Y.2d 835, 837 [1982]). The issue presented is complete on the record, and is reviewable, notwithstanding that Defendant-Appellant's new counsel did not raise it at the second trial. B. Defendant-Appellant Could Not Legally Commit Manslaughter in the Second Degree -- The Reckless Conduct Attributed To Defendant-Appellant Alleged By People To Have Caused Baby 's Death Was Not Criminal In State v Aiwohi, 109 Hawai'i 115, 123 P.3d 1210 (2005), the Supreme 75 Court noted that "[a]n overwhelming majority of the jurisdictions confronted with the prosecution of a mother for her own prenatal conduct, causing harm to a subsequently born child refuse to permit such prosecutions" [citing cases, including People v Morabito, 151 Misc.2d 259 (Geneva City Court, Ontario Co. 1992) (child endangerment- prenatal substance abuse)] (see also, State v Ashley, 701 So.2d 338, 340 [Fla. S.Ct. 1997] [Per Curiam] [At common law a pregnant woman could not be held criminally liable for causing injury or death to a fetus]) . . Indeed, in State v Ashley, 701 So.2d, at 339, supra, the Supreme Court answered in the negative the certified question, "1. May an expectant mother be criminally charged with the death of her born alive child resulting from self-inflicted injuries during the third trimester of pregnancy?" Courts in some other jurisdictions have reached the opposite conclusion, having done so by reading "viable fetus" into the definition of "person," or "child", or "minor child" (see Whitner v State, 328 S.C. 1, 492 S.E.2d 777 [S.Ct. 1997]; Ankrom v State, CR-09-1148, _So.3d_, 2011 WL2781258, Court ofCrim. Appeals, Alabama [August 26, 2011]). New York, however, has not done so. By way of contrast, under the common law, a third party (not the pregnant mother) can be found criminally liable for causing injury or death to a fetus, even in cases where the infant is injured in utero, and is born alive, but thereafter dies 76 (see State v Courchesne, 296 Conn. 662, 998 A.2d 1 [S.Ct. 2010]; State v Ashley, 701 So.2d, at 340, supra). Known as the "born alive" rule (see, People v Hayner, 1 300 N.Y. 171 (1949), "[a]t common law, a person could not be convicted of an offense involving homicide unless the victim, including a child whose death was the result of prenatal injuries, was first born alive" (People v Hall, 158 A.D.2d 69, 76 [1st Dept. 1990] [Milonas, J.], lv. denied, 76 N.Y.2d 940 [1990]). And there is "absolutely nothing*** [in] Article 125 of the [New York] Penal Law*** to protect persons, such as defendant, who shoot a pregnant woman in the stomach, whether deliberately or recklessly, from liability under the homicide statutes if the baby is born alive and subsequently expires from its prenatal wounds" (People v Hall, 158 A.D.2d, at 76). A second theory of third party criminal liability which may be "applied in tandem" with the "born-alive" theory, is "transferred intent" (see State v Courchesne, 296 Conn., at 721, 998 A.2d, at 68, supra). The point is that, in the third party culpability cases, the conduct engaged in by the defendant (not the pregnant mother) is criminal at its inception, and does not become so sometime later when the born alive victim of the criminal conduct dies. *** *** *** The criminal law in New York imposes on parents a nondelegable duty of 77 care for their children as to their health and well-being (see People v Steinberg, 79 N.Y.2d 673, 680 [1992]; People v Dickerson, 42 A.D.3d 228, 233 [1st Dept.] [Catterson, J.], lv. den., 9 N.Y.3d 960 [2007]); however, no such duty has been recognized with regard to the mother of an unborn child (see People v Morabito, 151 Misc.2d 259 [Geneva City Court, Ontario Co. 1992] [endangering the welfare of a child does not apply to unborn fetuses], cited in State v Aiwohi, 123 P.3d 1210, supra; State v Johnson, 602 So.2d 1288 [S.Ct. Fla. 1992]). Plainly, the reason for this is that the public policy of this State is not to become involved in regulating the conduct of a mother in the care of her unborn child. Under New York law, "[h]omicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than 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" (Penal Law § 125.00). '"Person,' when referring to the victim of a homicide, means a human being who has been born and is alive" (Penal Law §125.05[1]). In his Practice Commentary, Judge Donnino states that, '"[t]he definition of a 'person' when referring to the victim of a homicide means 'a human being who has been born and is alive' (Penal Law §125.05[1]). That 78 definition has the effect of excluding 'abortion' from all homicide statutes other than those specifically addressing an 'abortion"' (Donnino, Practice Commentaries, McKinney's Consol. Laws ofN.Y., Death§ 125.00). This means also that, for the purposes of the homicide statutes, "person" does not include "viable fetuses." Clearly, therefore, a pregnant woman's criminal exposure with respect to the death of her unborn child has been legislatively limited to the homicide -- self- abortion in the first degree, under Penal Law § 125.55. The New York Penal Law does not authorize the prosecution of a pregnant woman for any other crime with respect to the death ofher unborn child, nor does any other New York statute. According to Penal Law §125.55, self-abortion in the first degree, "[a] female is guilty of [this class A of misdemeanor] when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage***." An "abortional act" is "an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs, or in any other manner, with intent to cause a miscarriage of such female" (Penal Law§ 125.05[2]). Defendant-Appellant was not prosecuted for this crime, nor could she have 79 been, because she was charged with reckless (not intentional) conduct, and there is no crime defined in the Penal Law as reckless self-abortion, in any degree. Had a miscarriage occurred, Defendant-Appellant could not have been held criminally responsible at all for the death of her unborn child allegedly caused by her reckless conduct. Just as Defendant-Appellant could not recklessly endanger her unborn child (see People v Morabito, supra), she could not recklessly cause the death of her unborn child. But a miscarriage did not occur -- the baby survived, and was born alive, but died a few days later from the injuries she received in utero. 28 The second crime, relevant to Defendant-Appellant, is manslaughter in the second degree. According to Penal Law §125.25(1), "[a] person is guilty of manslaughter in the second degree when he [or she] recklessly causes the death of another person." And, a person "acts recklessly with respect to a result or to a circumstance described by a statute when he [or she] 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 a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct a reasonable person would observe in the situation." (Penal Law §15.05[3]). 28There is no contention that injury occurred after being born alive and those injuries caused her death. 80 But Defendant-Appellant was not chargeable with manslaughter in the second degree, either. That is because the reckless conduct People alleged caused Baby 's death was not criminal as to Defendant-Appellant (she could not recklessly cause her own death or recklessly endanger herself), nor was it derivatively criminal as to Baby ___ , who was not then a "person" or "another (separate) person," within the meaning of Penal Law §§125.05(1) and 125.15(1), respectively, when Defendant-Appellant supposedly engaged in that reckless conduct. To be guilty of any crime, the law requires "a temporal connection between mens rea and actus reus" (People v Valencia, 14 N.Y.3d 927, 931 [2010] [Jones, J., concurring]). The principle was explained in LaFave, Substantive Criminal Law §6.3[a], at 451 [2d ed.], quoted as follows in Judge Jones's concurring opmwn: "'it is a basic premise of Anglo-American criminal law that the physical conduct and the state of mind must concur. Although it is sometimes assumed that there cannot be such concurrence unless the mental and physical aspects exist at precisely the same moments of time the better view is that there is concurrence when the defendant's mental state actuates the physical conduct"' (14 N.Y.3d, at 933-34). When the "mental state" in this case "actuate[ d] the physical conduct", Baby 81 ___ was not a "person" or "another person," and did not become so until hours later. In Valencia, the Appellate Division rejected People's appellate contention that the mens rea component (depraved indifference to human life) was satisfied with reference to events hours earlier when the defendant made a conscious decision to consume an excessive amount of alcohol. That court concluded that, "the defendant's state of mind at the time he consumed the alcohol was too temporally remote from his operation of the vehicle to support a conviction for depraved indifference assault" (58 A.D.3d 879, 880 [2d Dept. 2009]). This Court affirmed, noting that "[t]he trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference" (14 N.Y.3d 927, 927-28 [2010]). The common-law "born-alive" rule is no help to People, either. That rule has been applied to third parties, and not to a pregnant woman, whose child was "born and [was] alive" (Penal Law §125.05[1]), but subsequently died from injuries received in utero, whether intentionally, recklessly or negligently inflicted. The ironies in this case are two-fold: First, had she been the calculating, cold, self-indulgent, uncaring/bad mother the prosecutor argued throughout the case Defendant-Appellant was, comparing and contrasting her with Mary Kelly-- 82 the wife of the deceased driver of the other vehicle, Defendant-Appellant most assuredly would not have consented to an emergency C-section to save the baby's imperiled life. She did consent, however, no doubt imperiling her own life. Second, had she not consented, and the baby died in utero, which would have been probable, Defendant-Appellant could not have been prosecuted for anything related to the death of her unborn baby. Having consented to a risky emergency delivery, in an effort to save her unborn baby, she is now being prosecuted for the failed attempt to save the baby's life. But, more fundamentally, an affirmance in Defendant-Appellant's second degree manslaughter conviction would permit, and encourage, law enforcement to become more involved in the regulation (or micromanagement) of a pregnant woman's daily conduct implicating serious privacy and constitutional concerns. Conduct not otherwise considered to be criminal could become the basis of a prosecution on a theory of recklessness if engaged in by a pregnant woman. For example, taking legally prescribed medicine, after being advised of the generic risks, causing complications in a pregnancy and premature delivery, ending in the death of the born-alive baby, might constitute recklessness. Is the mother, who takes the legally prescribed medicine, after being advised of the risks in taking the medicine, subject to criminal prosecution for homicide if 83 the child is born prematurely and subsequently dies? Or, is a pregnant woman subject to criminal prosecution because, after being advised of the risks, nevertheless goes horseback riding, ice-skating, skiing, or engages in any other sport, and falls, injuring herself, and her unborn child, and the unborn child is prematurely born alive, but dies. Or, a pregnant mother disregards medical advice from her treating physician relative to prenatal care, is that sufficiently reckless for a subsequent criminal prosecution? These examples, and others like them, serve to highlight the point that, as a matter of pubic policy, prosecution for anything more than what is provided for in the self-abortion and abortion statutes, Penal Law§§ 125.55 and 125.45, respectively, is dangerous. The conviction should be reversed and, the last remaining count of the indictment, dismissed. 84 POINT TWO THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO ESTABLISH DEFENDANT- APPELLANT'S GUILT OF MANSLAUGHTER IN SECOND DEGREE The theory of this prosecution was that, "fueled by a dangerous cocktail of drugs and alcohol" (Tr. 2070; 30), Defendant-Appellant recklessly drove her automobile and "barreled into" a second vehicle "head on" (Tr. 2070), thereby fatally injuring the two occupants of the on-coming vehicle, as well as Defendant- Appellant's then unborn baby, who was born alive a few hours after the accident, but died a few days later. After four days of deliberation, the jury found Defendant-Appellant not guilty of aggravated vehicular homicide, manslaughter in the second degree, two counts relating to the occupants in the second vehicle, and operating a motor vehicle under the combined influence of drugs or alcohol and any drug or drugs, as in A misdemeanor, but guilty of manslaughter in the second degree for the death of her daughter, Baby ______ _ The evidence was legally insufficient to establish that Defendant-Appellant recklessly caused the death of her daughter, Baby ______ . The conviction should be reversed, and the count remaining in the indictment, 85 dismissed. The theory of this prosecution was that Defendant-Appellant, in a single motor vehicle accident, recklessly caused the deaths of three people. To establish reckless conduct the prosecutor, on summation, identified seven reckless acts, or "factors" allegedly engaged in by Defendant-Appellant, viz: "she was speeding, she was running a red light, she was talking on her cell phone, not wearing her seatbelt, driving in the wrong lane, never hitting the brakes, and in fact accelerating" (Tr. 2083-84; 2112). The prosecutor further argued that, "And ladies and gentlemen, you don't all have to agree on all those seven reckless acts.*** Mr. [Juror], for you it could be speeding and not wearing your seatbelt, Mr. [Juror] for you, it could be driving in the wrong lane and never hitting your brakes. The point is that you don't all have to agree on all seven factors. Any one of them alone can proof [sic] her reckless acts that day" (Tr. 2113; emphasis added).29 The court overruled counsel's objection, and did nothing to correct this misstatement of the law in his final instructions to the jury on recklessness. Finally, in her summation, the prosecutor suggested an alternative cause of Baby 's death-- an alternative cause, though not alleged in the 29 A special verdict on the seven acts or factors was not rendered nor was a special verdict requested (see People v Ribowky, 77 N.Y.2d 284, 290-91 [1991]). 86 indictment, which was very much a part of People's case -- that Baby ____ _ may have died as a result of Defendant-Appellant's chronic abuse of medication legally prescribed for her by two licensed physicians. To this the prosecutor seductively added, "We'll never know" {Tr. 2116), in effect conceding that the evidence was insufficient to establish beyond a reasonable doubt what was the =ca=u=s=e-=o-=-fB=ab:::...Y"'--===='-=s-=d=ea=t=h (see Kamienski v Hendricks, Dkt. No. 06-4536, 322 Fed. Appx. 740, 749, 2009WL1477235, *9 [3d cir. 2009] [prosecutor's concession on summation about State's evidence -- habeas corpus granted]). Defense counsel's objection, and later mistrial application were nevertheless denied (Tr, 2115-16; 2118 ["finishing remarks"]). After the jury returned their verdicts, but before the jurors were discharged by the court, defense counsel moved to set-aside the conviction, or, alternatively to instruct the jurors to resume deliberations, because the verdicts were "inconsistent" (Tr. 2238-39). The prosecutor opposed, arguing that the verdicts were not inconsistent because "[ w ]hen you look at the evidence you can find that there is the causation element that can differ between the Kellys and the baby. And I believe that's what the jury had done, and that's not inconsistent" (Tr. 2239). Agreeing with the prosecutor's argument about "the causation element that 87 can be different between the Kellys, and the baby" (Tr. 2239), the court denied the motion, and discharged the jury (Tr. 2239). The issue presented has been preserved for appellate review (see CPL 470.05[2]; People v Finch, 23 N.Y.3d 408, supra). We submit, viewing the evidence in the most favorable light to the prosecution (see People v Contes, 60 N.Y.2d 620, 621 [1983]), that, based on the prosecutor's argument, in opposition to defense counsel's post-verdict motion, the evidence was legally insufficient to establish "the causation element" -- "recklessly caused" (see post, at Point Three, at 115-20). Analyzing this "mixed verdict" (see People v Rayam, 94 N.Y.2d 557, 563 n* [2000], citing People v Yarrell, 75 N.Y.2d 828 [1990], rev'g on dissenting opinion, 146 A.D.2d 819, 821-22 [2d Dept. 1989] [Brown & Harwood, JJ., dissenting]), the jury unanimously concluded that the evidence did not establish that, at the time in question, Defendant-Appellant was "impaired to any extent" or that she recklessly caused Robert and Mary Kellys' deaths. In reaching these conclusions, the jury found none of the seven reckless acts the prosecutor attributed to Defendant-Appellant to be sufficient to convict her of second degree manslaughter as to the Kellys. Of the seven acts identified by the prosecutor, six of the acts applied equally 88 to the Kellys and to Baby _____ . That is, the acts in driving Defendant- Appellant's vehicle which, the prosecutor argued, she drove recklessly, and "barreled into" the Kellys' vehicle, "head on". One act-- Defendant-Appellant's alleged failure to wear her seatbelt -- could not have caused, or even contributed to, the accident or the Kellys' deaths, and the prosecutor did not contend otherwise. Rather the prosecutor, in her summation (Tr. 2093-95), reserved that one act -- the alleged failure to wear a seatbelt -- for Baby __ _ A defense to the charges was a spontaneous placental abruption. Two People's witnesses, Dr. John Petraco and Dr. Hajar Sims-Childs, agreed that Defendant-Appellant had indeed suffered a placental abruption. Dr. Petraco conceded that the abruption could have been spontaneous, thereby causing Defendant-Appellant to lose control of her vehicle and crash into the Kellys vehicle "head-on." He was not, however, able to state with any degree of medical certainty whether Defendant-Appellant's abruption was spontaneous, and thereby caused the accident, or the accident occurred first, thereby causing the abruption which would have been facilitated by an alleged failure to wear the seatbelt. In short, Dr. Petraco was not able to rule out the possibility that the abruption was spontaneous, nor was he even able to testify about what was/was not likely. Dr. Sims-Childs expressed no opinion about the subject, nor was she asked 89 to do so, other than to state that Baby _____ 's injuries were caused by the placental abruption, however it occurred. If Defendant-Appellant, therefore, had the spontaneous placental abruption, six ofthe seven so-called "reckless acts", attributed to Defendant-Appellant, would have been neutralized, leaving the one -- the failure to wear a seatbelt, unexplained. This meant that a spontaneous placental abruption would not have excused, or explained, as a reckless act or factor, Defendant-Appellant's alleged failure to wear a seatbelt, as it would the other acts, which described the manner in which the vehicle was being/or not being operated. Indeed, according to the experts at trial, Defendant-Appellant's alleged failure to wear a seat-belt was confined to the abruption and the consequent injuries to Baby _____ . It had nothing to do with how she was operating the vehicle. Obviously, had she been wearing her seatbelt, the crash would have still occurred. To explain the apparent inconsistency in this mixed verdict, the prosecutor argued that the jury was fixated on "the causation element" which was different between the Kellys and Baby __ _ Without an explanation or clarification from her about the statement, the prosecutor could have meant one of two things (see also post, at__): (1) the seatbelt factor, either alone, which was not applicable to the Kellys, or with any of 90 the other factors, sufficiently established Defendant-Appellant's recklessness; or (2) the alternative theory for the cause of Baby _____ 's death, suggested by the prosecutor on summation, the physical effects on Baby _____ of Defendant-Appellant's alleged prolonged use of medication that was prescribed for her by two licensed physicians. The trial court evidently agreed that the "causation element", as argued by the prosecutor, was sufficiently different, and denied defense counsel's motion based on the argument that the mixed verdicts were inconsistent. First, the seatbelt cannot, as a matter of law, be the determinative "reckless act" or "factor" either alone, or with the other risk factors, sufficient to establish that Defendant-Appellant recklessly caused Baby 's death (see People v Cabrera, 10 N.Y.3d 370 [2008]). The simple fact is, identical to Cabrer~ the failure to wear a seatbelt is "not conduct causing or contributing to the risk of an automobile accident" (People v Cabrera, 10 N.Y.3d, at 380, supra). Whether or not Defendant-Appellant was wearing a seatbelt (and substantial evidence was presented that she was), the automobile accident would have occurred. Second, the prosecutor's argument that Baby ___ ' s death may have been caused by the alleged prolonged use of prescription medication is no explanation for the difference in "the causation" element because that was not what was the 91 theory of this prosecution. But more fundamentally, the prosecutor's statement "We'll never know" is, in effect, a concession that "we'll never know" (Tr. 2116) what caused Baby ___ 's death. "We'll never know" is not the equivalent of legal sufficiency and, most assuredly, is not guilt beyond a reasonable doubt. To argue otherwise in support of the conviction is to dilute and demean the presumption of innocence (see Kamienski v Hendricks, 322 Fed. Appx. 740, 749, 2009WL1477235, *9, supra). If the cause of Baby ___ ' s death was the effects on her from Defendant-Appellant's alleged chronic abuse of prescription medication, and not the allegedly reckless manner in which she operated her motor vehicle, then Defendant-Appellant was not guilty of the crime charged. But the concession "we'll never know" establishes neither as the cause of her death, and left it to the jury to speculate as to what in fact caused the death (see Kamienski v Hendricks, supra). The conviction should be reversed, and the remaining count of the indictment, dismissed. 92 POINT THREE DEFENDANT-APPELLANT'S FEDERALLY AND STATE GUARANTEED RIGHTS TO A FAIR TRIAL AND DUE PROCESS WERE VIOLATED BY THE ADMISSION AT TRIAL OF EVIDENCE PERTAINING TO HER LEGALLY PRESCRIBED MEDICATIONS AND THE PROSECUTOR'S EXPLOITATION OF THAT EVIDENCE ON SUMMATION. On this appeal, Defendant-Appellant contends that her federally and State guaranteed rights to a fair trial and due process (U.S. Const., Amdts. XIV; N.Y. State Const., art. 1, §6), were violated by the admission into evidence of testimony and pharmacy records (as so-called "bad acts" evidence) to show that, over the course of her pregnancy -- some seven months -- up to the accident, she was filling prescriptions from two physicians (a psychiatrist, and a general practitioner) for two legally prescribed medications (clonazepam and alprazolam) for anxiety, and, presumably, was taking the legally prescribed medication while pregnant. In addition, the prosecutor exploited this evidence on summation by suggesting Defendant-Appellant was an uncaring, and cold mother, "self- medicating," "addicted"-- a drug and alcohol abuser, and, therefore, predisposed to committing the crimes charged, and by suggesting a theory of recklessness and 93 causation of death different from the theory alleged in the indictment. And, no instructions were given by the court to the jury, either when the evidence was admitted over objection, or when the jury was charged on the law, after both sides rested and summations were given. There should be a reversal. A. The Issue Presented Has Been Preserved For Appellate Review. Though the subject of Defendant-Appellant's prescription medication history, and her alleged consumption of the legally prescribed medicine, not on the date of the accident, arose at the first trial, new defense counsel raised the subject on the first day of jury selection for trial number two in response to People's in limine motion seeking the admission of the evidence. Distancing himself from defense counsel's strategy at trial number one (A. 18), defense counsel opposed the admission of any evidence pertaining to Defendant-Appellant's prescription medication history for two "benzodiazepines" -- clonazepam and alprazolam (popularly known as Xanax), one of which, alprazolam, was not even alleged to be in her "system" on the day of the accident. Defense counsel argued, 94 "[t]he only thing found in her system was Clonazepam. There were no other drugs found in her system. She was moving that day. The Court is aware of that. Any prescriptions she has had in the past I don't see how they were relevant to the accident she was involved in on May 30, 2008. It is extremely prejudicial. The only purpose it would serve is to make my client out to be someone that abuses prescription drugs, which she is not, which she has denied since day one, Judge" (A. 18-19). The court rejected defense counsel's arguments in opposition to the admission of the evidence, stating "[y]ou have an exception" (A. 19). Later on during jury selection defense counsel re-argued the admissibility of Defendant-Appellant's prescription medication history for clonazepam and alprazolam, pointing out to the court that, "the only reason the district attorney has attempted to use it is to convey a message that [Defendant-Appellant] is addicted to pain medication and is either self-medicating or either over medication. The public is extremely sensitive to these issues regarding prescription drugs. Everyday you see a news story in one of the local papers. All this serves to do is to prejudice the jury. By allowing the People to use this type of evidence, in essence the burden is being shifted to the defendant, to explain why [she] was and is prescribed these drugs from two different doctors.*** And if the DAis permitted to introduce the evidence it will amount to a violation of the due process 95 clause and [Defendant-Appellant] will be denied her fundamental right under the U.S. Constitution to a fair trial. There is just no relevance to this evidence, Judge, and it is completely prejudicial" (A. 24-25; emphasis added). Referring again to what happened at trial number one, with different defense counsel, the prosecutor responded that, "we need to show the complete history to the jury. That includes pharmacy records and medical records of the defendant regarding her prescription pills. Just so the record is clear we're seeking to introduce this on our case in chief. The fact that she's going to different doctors for these pills, getting the same type of drugs, goes to show that she's abusing these pills. That's consistent with our theory of the case that the defendant was taking these drugs regularly and was therefore impaired while she was driving that vehicle that day. The question of relevance, whether probative value outweighs any prejudice we feel that that is the case here" (A. 26). When confronted by the court and defense counsel with the fact that, unlike clonazepam, alprazolam was not alleged by People to have been in Defendant- Appellant's blood on the date of the accident (A. 28-29), the prosecutor answered, "this drug was found on her person. It is the same class of drug that was found in her system * * *. She's going to two separate doctors on the same day to get these drugs and filling them the same day. This goes to our theory of the case, that she 96 was abusing these drugs and that she was impaired by these drugs while she was driving." (A. 29-30). And, when asked "how far back will [the records] go" (A. 30), the prosecutor answered, "[i]t goes back through the pregnancy" (A. 30). The court overruled the defense objections as to both clonazepam and alprazolam (A. 30-31 ). The subject of the admissibility of evidence about clonazepam and alprazolam was revisited immediately prior to the testimony of People's witness, Mayur Shah, a pharmacist (Tr. 421 et seq.). Defense counsel argued, first, that evidence about the two medicines should be excluded because "we don't know why [Defendant-Appellant] was prescribed" either of the two medications (Tr. 407). Second, defense counsel argued again that, because clonazepam and alprazolam are not the same, even though "they are both the same class of drug" -- benzodiazepines (Tr. 406-07), "[t]he Alprazolam did not appear, or the metabolite did not appear, in any of [Defendant- Appellant's] blood tests. So I don't see the relevance of that drug being introduced on this case at all, unless it's to argue. prejudicially. that [Defendant-Appellant] is a pill- popper, and I don't think there's been any evidence of that. Number two, I don't understand -- if the Court could give me a legal reason why the prescription history 97 for either drug is relevant? It's similar to if I was charged with driving while intoxicated and we marched in bartenders from bars that I frequented for the last eight months, and they say, yes he was here, and he had two beers on this day, he had three beers on that day, that still doesn't go to prove that on the day in question I was impaired or intoxicated by alcohol. I think the same reasoning is in this case. It is not relevant at all, as far as prescription history goes; it's not the same drug, as far as the Alprazolam and Xanax goes. When I argued initially, I put several reasons on the record that would prevent [Defendant-Appellant] from having a fair trial, and its unconstitutional, your Honor, I don't see how it's relevant, event in the slightest amount" (Tr. 407-08; emphasis added). People responded in essence that, based on what had occurred at the first trial, the full prescription history for seven months was necessary to avoid any possible misconceptions, and "we have a right to show the complete picture of the jury" (Tr. 409; 411 ), which "shows her addiction to these drugs, and that she was in fact impaired by these drugs at the time of the crash" (Tr. 410; emphasis added), even though, as People conceded (Tr. 412), ''the metabolite ofClonazepam and Alprazolam are different" (Tr. 412), and the metabolites for Alprazolam were not alleged by People to have been found in Defendant-Appellant's blood (Tr. 412- 13). Replying to People's arguments, defense counsel again disclaimed any 98 reliance on what occurred at the first trial, stating "I am not treating the case the same way" (Tr. 410), and added that, "[t]he prescription issuing doesn't show that she was ingesting the drugs at all. No one can come in here and say that they saw [Defendant-Appellant] consuming these drugs prior to this date in question. I could have one-hundred prescriptions for Vicodin filled. If I'm not taking them, I'm not taking them. *** *** Whether or not she was impaired on that day? Even if you have a prescription history which shows that she was prescribed the drug every day for ten, twelve months, unless someone comes in here and says they saw her taking this drug and abusing it, it will paint an unfair picture for the jury, Judge, and I happen to know for a fact I haven't opened the door (Tr. 410-11; emphasis added). People also announced, to the court's surprise, that their intention was to call as a People's witness Defendant-Appellaqt's OB/GYN, Dr. John Petraco, to testify that he was unaware that she was "taking these pills" (Tr. 413) because "[i]t could affect his opinion on what happened in this case" (Tr. 413). On reconsideration of its prior ruling as to both prescription medicines, the court granted the defense application to the extent of excluding evidence on Alprazolam, "given the fact that Alprazolam nor its metabolites were found in [Defendant-Appellant] blood" (Tr. 414). 99 Regarding clonazepam, however, the court noted that, "[o]bviously. there's an issue as to whether or not the metabolites of Clonazepam were present in [Defendant-Appellant's] blood. As you both know*** we had extensive testimony [at the first trial], the toxicology-- from toxicology experts regarding what was present, the synergistic effects ofClonazepam with alcohol. To me that makes the prescription history of Clonazepam relevant. So I'm going to allow the People to question with respect to [Defendant-Appellant's] prescription history, specifically with Clonazepam * * * the prescription history with Clonazepam is fair game and in my opinion relevant given the positive findings in the defendant's blood" {Tr. 414-15, 416; emphasis added). As far as the possibility that Alprazolam had been in her system, but had been dissipated when the testing was done because, as represented by the prosecutor, it "has a shorter life" (Tr. 415-15), the court rejected this argument as "complete speculation"-- "No mention of Alprazolam and that line of questioning, the People should not pursue it" {Tr. 416). People's witness Shah was followed by Dr. John Petraco --a partner in Suffolk Obstetrics and Speciality Group LLP, which treated Defendant-Appellant during her pregnancy, beginning on November 1, 2007, until the accident, on May 30, 2008 {Tr. 504-06; 51 0). Dr. Petraco saw her as a patient for the first time on 100 March 20. 2008 (Tr. 51 0). Immediately prior to his testimony, the prosecutor informed the court that, "[w]e're calling Dr. Petraco; he was her obstetrician during the period of this pregnancy. We're calling him as to the status of her pregnancy, the conditions during her pregnancy and the communications between her and the doctor concerning Clonazepam." (Tr. 500; emphasis added). Defense counsel objected to any testimony from Dr. Petraco, arguing that, "It's my position that [Defendant-Appellant's] medical condition prior to May 30, 2008, has not been put in issue; I haven't put it in issue. Whether or not she disclosed what medications she was taking with her obstetrician. it's not relevant to this case regarding what's in the indictment. Judge. Based on that, I don't see how it's relevant that he is going to testify in this case regarding his prior dealings with [Defendant-Appellant]." (Tr. 500-01). The court overruled defense counsel's objection, stating that "Dr. Petraco will be permitted to testify" (Tr. 501). After Dr. Petraco's testimony, defense counsel, referring to this testimony and recalling that his objection may have been "in Chambers" and not on the record (Tr. 594), reiterated the point that "[b]efore Dr. Petraco testified I felt it wasn't relevant for the district attorney to inquire whether or not [Defendant- Appellant] told him she was taking the drug Clonazepam. We spoke about it in 101 the back and I was overruled" (Tr. 594-95). The court responded, "[y]ou have an exception" (Tr. 595). As part of the defense, Defendant-Appellant presented the expert testimony of Dr. Robert Alan Middleberg, on the toxicology that was conducted in this case. During his direct testimony, Dr. Middleberg was asked about tolerance and cross- tolerance involving clonazepam and alcohol, "synergy" and "synergistic" effects (Tr. 1819-26), none of which was objected to by the prosecutor. Indeed, similar testimony was elicited by the prosecutor on People's case in chief during the direct examination of People's witness, Lori Arendt, a Forensic Scientist in the Suffolk County Medical Examiner's Office who supervises the DWI program (Tr. 1115- 16), and from People's witness Michael Katz, the assistant to Chief Toxicologist, Suffolk County (Tr. 1232, et. seq.). Ms. Arendt testified about the effects of alcohol and clonazepam and how the two interact, i.e., "[i]t enhances any effect that the alcohol has on a person*** and it's also considered synergistic, which means that the total effect from the combination of alcohol and the clonazepam would be greater than the sum of the individual impairments" (Tr. 1145-46). Mr. Katz testified that alcohol and clonazepam are "two central nervous system depressants and because they both act by the same mechanism, I believe they act in a synergistic way in that they both 102 magnify and enhance the effects of each other. So that the effects of both of them together are greater than the sum of its parts. Or just to use an exam[ple], one plus one equals three. * * * Both the drugs are central nervous system depressants and they both*** potentiate each other" (Tr. 1263). Yet, at the conclusion of Dr. Middleberg's direct testimony, during which not one word was mentioned about alprazolam, or any other drug, except clonazepam, the prosecutor made the following application: "to be able to ask the doctor on the stand about the Alprazolam that the defendant was prescribed, how that can affect tolerance, whether there's cross tolerance of the two benzodiazepines. The witness has testified that there's a tolerance having to do with this benzodiazepine -- Clonezepam, specifically -- and we want to be able to inquire as to how that Alprazolam would affect tolerance. And we would further like to introduce the unredacted pharmacy records showing the prescriptions that the defendant was given for Alprazolam." (Tr. 1831). In essence, the prosecutor was arguing that the defense had opened the door to what the court had previously excluded from the prosecutor's case. Defense counsel objected, arguing that, "Judge, I think it's clear in all the toxicological records we've seen that Alprazolam was not in [Defendant-Appellant's] system. The Court kept it out. It's my position that the door was not opened by 103 this witness to the use of cross-examination regarding Xanax, Alprazolam, a drug that wasn't even in her system. The question is her impairment on May 30, 2008. It has nothing to do with a drug that she may have been prescribed prior to that, for numerous different reasons. And my questioning was regarding the tolerance of Clonazepam * * * and that should not open the door * * * [i]t has nothing to do with Alprazolam. And the fact that they are able to use a prescription history of a drug that wasn't in her system, I can't see anything more prejudicial" (Tr. 1831-32). The court disagreed with defense counsel (Tr. 1832-33), and limited the prosecutor as follows: "You can ask strictly in the context of tolerance, you can ask if he was aware that she had been prescribed -- not that she took it -- but that she had been prescribed it. And you can ask about the clinical distinctions between Alprazolam and Clonazepam, however that affects the synergistic or addictive -- I know the two experts disagree on that -- but to that exent I will allow it. In my opinion that door has been opened. And you will be permitted to introduce the evidence to the prescriptions. But that's it." (Tr. 1832; emphasis added). Finally, after deliberations began, the court and counsel discussed redactions on the medical records admitted into evidence (Tr. 2167). Defense counsel objected to the inclusion of Alprazolam in the medical records (not the pharmacy records) (Tr. 2167). He reminded the court that, "[a]s I have stated 104 through the trial it was not relevant to the case, it was not found in her blood, it is prejudicial, and they shouldn't be mentioned in the medical records." (Tr. 2167). The prosecutor responded in opposition that "Judge you have ruled that the Alprazolam prescriptions can come in. It was found on her property, in her purse, and that's what the medical records list" (Tr. 2168; emphasis added). The court agreed with the prosecutor, adding that "it is consistent with the evidence" (Tr. 2168). The jury asked for and received the exhibits pertaining to "the prescriptions from the pharmacies" (Tr. 2169). The issues presented concerning Defendant-Appellant's alleged use of prescribed medication was preserved for appellate review (see CPL 470.05[2]), and the testimony of defense toxicology expert, Dr. Robert Alan Middleberg, opened no doors for the admission of evidence as to the prescription history for alprazolam. B. Prejudicial Error Was Committed By the Admission of Evidence Pertaining to Defendant-Appellant's Prescription Medication History and the Prosecutor's Use of that Evidence at Trial. Based on the trial court's twice modified ruling (Tr. 414; 1832-33), 105 pharmacy records showing Defendant-Appellant's medication history (People's Exhibits 50, 51, 53, 54, and 55) at three different pharmacies (Tr. 425-29; 438-43; 496-98; 2102-03; 2167-69), and her medical records at Suffolk Obstetrics & Gynecology, LLP (People's Exhibit 56; Tr. 506-08; 2167-69), for the period November, 2007, through May, 2008, were admitted into evidence, and the records were "displayed to the jury" during the trial (Tr. 551 ), and deliberations (Tr. 2169). From the admission into evidence of these documents, witnesses were shown the records during their testimony, and were asked questions, based on the information contained in the records, about clonazepam and alprazolam, or were questioned about the drugs themselves without specific reference to the records (their properties, strengths, purpose[s] and the like), including: Supervising Pharmacist at Quality Pharmacy, Mr. Mayur Shah (Tr. 421, et seq.); Dr. John Petraea, one of Defendant-Appellant's treating OB/GYN physicians (Tr. 504, et seq.); Ms. Lori Arendt, a supervisor and analyst in the toxicology department, Suffolk County Medical Examiner's Office (Tr. 1114, et seq.); Mr. Michael Katz, an assistant to the chief Toxicologist, Suffolk County Medical Examiner's Office (Tr. 1232, et seq.); Dr. Robert Alan Middleberg (defense witness) (Tr. 1765, et 106 seq.)30; and, Dr. Michael Lehner (rebuttal), Chief Toxicologist for Suffolk County (Tr. 1952, et seq.). In addition to this highly technical, and repetitious testimony about the two prescription medications, clonazepam and alprazolam, the class of prescription medicine they belong to (benzodiazepines) and their properties, tolerance and cross-tolerance, including mixture with alcohol, the jury also heard testimony about the dangers and risks associated with the medications and alcohol to an unborn baby -- information which none of the witnesses presented at trial could state Defendant-Appellant was informed about or was aware of. As an example, People's witness Dr. John Petraco testified on direct examination, without any door opening by the defense, that he consulted the book, "Drugs in Pregnancy and Lactation," which includes reference to clonazepam, rating it "a class D risk factor" (Tr. 542-43; 544), meaning that "there's evidence that it could affect or harm a fetus. However, the benefits of using it in pregnant women may justify its use during the pregnancy if there's a medical reason that's significant enough to justify the potential risk to the fetus" (Tr. 545-46). Regarding prescription medication and alcohol, Dr. Petraco testified that: 30Dr. Middleberg was the first witness to be questioned about alprazolam after the court modified its ruling to allow such questioning. 107 (1) ~"newly pregnant" patient presenting at Suffolk Obstetrics & Gynecology is ordinarily given information (verbally and in writing) pertaining to "[t]hings related to pregnancy, * * * their medical history or surgical history * * * diet * * * activity needs and restrictions, educational classes; * * * what you would expect with any doctor - patient interaction, from a medical perspective and from a pregnancy perspective" (Tr. 510-11). "[S]peaking for [him]self ***usually at the beginning of the pregnancy, [he[ would instruct them not to partake in any alcoholic beverages" (Tr. 511 ). Defendant-Appellant first presented at Suffolk Obstetrics & Gynecology on November 1, 2007 (Tr. 51 0). He saw her for the first time on March 20, 2008 (Tr. 51 0); (2) there was counseling at Suffolk Obstetrics & Gynecology about the use of prescription medication (Tr. 511 ), including "the risks and benefits associated with those" (Tr. 512); (3) on her first visit to Suffolk Obstetrics & Gynecology for this pregnancy, Defendant-Appellant left blank on the "patient intake sheet" the answer to '"Medications Taken"' (Tr. 537); ( 4) no indication in her medical records that Defendant-Appellant informed Dr. Petraco or his office that she was "taking" (as opposed to filling prescription for) clonazepam as reflected in the pharmacy records, admitted into evidence, for Quality Pharmacy, CVS Pharmacy, Echo Pharmacy, and Rite Aid Pharmacy (Tr. 539-41); (5) for a patient at Suffolk Obstetrics & Gynecology, if she were "taking 108 prescription medication there's [typically] a risk-benefit analysis that goes into it [counseling]" (Tr. 541), i.e., "[r]isks to mom and to baby" (Tr. 542); and (6) Dr. Petraco was "aware that clonazepam can cause breathing problems in infants" Tr. 542; emphasis added).31 A second witness, Dr. Hajar Sims-Childs -- the Deputy Medical Examiner, testified to a reasonable degree of medical certainty that Baby 's "cause of death was prematurity [her gestational age being 34 weeks and full gestation being 40 weeks (Tr. 1405; 1439)] and hypoxic encephalopathy, due to placental abruption due to maternal blunt force trauma" (Tr. 1411; 1446), meaning "an infant in utero and blunt force trauma or blunt injury to the mother caused these changes which affected the fetus as far as being born prematurely and having hypoxic injury" (Tr. 1411). Dr. Sims-Childs also testified on direct examination, without the door being opened by the defense, about the effect on an unborn baby of a mother's consumption of alcohol, stating that, "[b ]ecause alcohol does not freely cross the placenta, it can cause developmental abnormalities of the infant, as well as intellectual and cognitive abnormalities when the child is born" (Tr. 1420). Conceding on cross-examination that no abnormalities, such as those associated 31The court overruled defense counsel's objection (Tr. 542). 109 with fetal alcohol syndrome were evident when the autopsy on Baby ____ _ was performed (Tr. 1440-48), Dr. Sims-Childs noted that these abnormalities do not ordinarily surface until the person affected gets older (Tr. 1452). On summation, the prosecutor's overarching theme was that Defendant- Appellant was a cold, self-indulgent young woman, who had little or no concern for her soon-to-be-born daughter, and (in contravention of the court's order dismissing Count Five of the original indictment) that she should be held accountable for recklessly endangering her unborn child and/or being a "bad mother". By obtaining a conviction for reckless second manslaughter, People, rather than appealing the motion court's dismissal order, effectively circumvented that ruling. To that end, People compared and contrasted Defendant-Appellant's behavior in the immediate aftermath of the accident with the behavior of Mary Kelly -- the wife of the driver of the second vehicle, who died at the scene. According to some witnesses, Mrs. Kelly, who survived the crash, only to die a few weeks later from her injuries, expressed deep concern at the scene for her husband. Other witnesses testified that Defendant-Appellant expressed concern only for herself (possible disfigurement), but no concern for her unborn child. (Tr. 321-22; 960; 1699). 110 Building on this alleged selfishness, argued at some length by the prosecutor, and objected to by the defense (Tr. 2076; 2090-91; 2115), the prosecutor read to the jury, from the pharmacy records, Defendant-Appellant's prescription history for both clonazepam and alprazolam (Tr. 2102-04), and, fancying herself to be an expert in the field, "testified" as an unsworn witness that "clearly she [Defendant-Appellant] [is] addicted to these [both] medications". (Tr. 2104).32 And, immediately after the objection, the prosecutor continued with "[s]he's self-medicating" but "doesn't tell her doctors. You heard her mother-in- law, she didn't know she was taking any drugs. We [the prosecutor and the jury] know differently" . (Tr. 21 04; emphasis added). And, from "knowing" this, the prosecutor (as she forewarned she would) urged the jury to draw the forbidden inference that Defendant-Appellant was predisposed to commit the crimes charged, arguing that, "Now think about it ladies and gentlemen. If you are up her at Michael's [Craft Store] and eventually you 32Defense counsel's objection that "[t]here's no evidence of that" . (Tr. 2104) was dismissed, the court stating "so noted. Nothing said in summations is evidence". (Tr. 2104). Noteworthy here is defense counsel's opposition, from the outset, to evidence regarding alprazolam which even the prosecutor conceded, early on, was not found in Defendant-Appellant's system. In any even, the law is well-settled that it is improper for a prosecutor to become an unsworn witness on summation (see People v Moye, 52 A.D.3d 1, 6 [1 51 Dept. 2008], affd 12 N.Y.3d 743 [2009]). 111 are going to go down here, where are you going for an hour [before the accident]? You are going to go to your house, right her (Indicating). You are going to have a few drinks. And why is that so easy to believe and not outlandish? You have a woman who is taking prescription drugs. drugs you are not supposed to take while you are pregnant, and not telling her doctor .. (Tr. 2103; emphasis added). *** Someone that's addicted to medication, someone who has four times their dosage in their system, somebody that's hiding it from their doctors, from their family, is it really that much of a stretch that she went home in those fifty eight minutes [before the accident] and had a couple of shots of vodka to calm her nerves? No one will ever smell it unless she vomits" (Tr. 2104- 05; emphasis added). But the final, most telling, blow -- most telling in the sense that it confirmed defense counsel's well-founded fears concerning the admission of the prescription medication evidence-- came in the prosecutor's final argument to the jury, exhorting them to convict Defendant-Appellant of the five counts: "The bottom line, ladies and gentleman, is that three people are dead here. Three people are dead because of the defendant's actions. And none of them deserved to die this way. *** Baby was born with an Apgar score of one. Her few days of life 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's breathing. We'll never know. But she did not deserve that. She deserved a chance at life. 112 Recently, the Kelly family thanked me for giving ***for giving their parents back their voice in this whole trial. Now it's your chance to give them back their voice. Don't compromise. Find her guilty of causing these three deaths. Find her guilty because that's what she is". (Tr. 2115-16; emphasis added).33 The prosecutor's message to the jury, underscored above, that Defendant- Appellant's addiction to prescription drug medication, and consumption of those drugs over a significant time period, recklessly endangered her daughter, and caused her death -- in effect, changing the theory of the prosecution from recklessly driving her automobile and causing an accident, resulting in the deaths of three people, to recklessly causing her daughter's death, separate and apart from the Kellys, by exposing her daughter to the dangers/risks of ingesting prescription medication, which she had allegedly been warned not to take, thereby causing her daughter's death from the complications arising from the medication consumed by Defendant-Appellant. *** *** *** Unlike its federal counterpart, Rule 404(b) ofthe Federal Rules of Evidence, which has been called a rule of inclusion (see United States v Brown, 33Defense counsel's objection was overruled. (Tr. 2116). He also moved immediately for a mistrial, in part because the prosecutor's "finishing remarks are completely improper, as well". (Tr. 2117-18). The court denied the mistrial application. (Tr. 2118). 113 597 F.3d 399, 404 [D.C. Cir. 2010]; United States v Cole, 537 F.3d 923, 928 [8th Cir.], cert. den. 555 U.S. 1080 [2008]; United States v Stevens, 83 F.3d 60, 68 [2d Cir.] ["inclusive approach"], cert. den. 519 U.S. 902 [1996]; United States v Jemal, 26 F.3d 1267, 1272 [3d Cir. 1994], cert. den., 488 U.S. 901 [1995]), the New York rule governing the admissibility of prior "bad acts" evidence is a rule of exclusion (see People v Resek, 3 N.Y.3d 385, 390 [2004]) --"under our Molineux jurisprudence we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions." And, while this court has recognized that the five Molineux categories are "illustrative merely. There is no closed category of relevance"' (People v Calvano, 30 N.Y.2d 199, 205-06 [1972]), it has also been hesitant to "carve out" new exceptions (see People v Arafet, 13 N.Y.3d 460, 466 [2009] ["specialized crime" exception]). At bottom, the Molineux rule "'is based on policy and not on logic"' (People v Arafet, 13 N.Y.3d at 465, quoting People v Allweis, 48 N.Y.2d 40, 46 [ 1979]), and it has been the long standing policy of this State (see People v Zackowitz, 254 N.Y. 192, 197-98 [1930] [Cardozo, C.J.]; People v Richardson, 222 N.Y. 103, 106-07 [1917] [the rule excluding uncharged crimes "should be strictly enforced"]; People v Sharp, 107 N.Y. 427,467 [1887] [Peckham, J.]) "long before Molineux" was decided in1901(People v Rojas, 97 N.Y.2d 32, 36 [2001]). 114 The reason for the rule is "to avoid the danger that the jury will 'misfocus * * * on [the] defendant's prior crimes rather than on the evidence - or lack of evidence - relating to the case before it' ***and will, even though not fully convinced of the defendant's guilt of the crime charged, nevertheless 'find against [her] because [her] conduct generally merits punishment"' (People v Wilkinson, 71 A.D.3d 249, 253 [2d Dept. 2010] [Fisher, J.], quoting People v Rojas, 97 N.Y.2d, at 36-37, supra; and People v Allweis, 48 N.Y.2d, at 46, supra). *** *** *** *** By the Jury's verdict, finding Defendant-Appellant guilty of one count (manslaughter in the second degree), and not guilty of the other four legally and factually interrelated counts (aggravated vehicular homicide, manslaughter in the second degree - two counts, and operating a motor vehicle while under the combined influence of drugs or alcohol and any drug or drugs, as a class A misdemeanor), the jury found that: (1) rather than being impaired "to any extent" (Tr. 2084-85), Defendant-Appellant was impaired to no extent; and (2) by her conduct on May 30, 2008, Defendant-Appellant did not recklessly cause the Kellys' deaths, not being impaired to any extent at the time in question, but did recklessly cause the death of her daughter. In response, to defense counsel's motion to set-aside the guilty verdict, before the jury were discharged, the 115 prosecutor argued that the verdicts were not inconsistent because "[w]hen you look at the evidence you can find that there is the causation element that can differ between the Kellys and the baby. And I believe that's what the jury has done, and that's not inconsistent" (Tr. 2239). Crediting this distinction, the court denied defense counsel's motion, and the jury were discharged (Tr. 2239). By her explanation, the prosecutor meant either that ( 1) Defendant- Appellant's reckless conduct in abusing prescription medication for seven months "that's known to affect a fetus's breathing", as the prosecutor argued (Tr. 2115- 16), recalling Dr. Petraco's objected to testimony on that subject (Tr. 542), alone caused her daughter's death; or, (2) the seven reckless acts the prosecutor argued to the jury as establishing recklessness (Tr. 2083-84; 2112-13), were different for the Kellys and for Defendant-Appellant's daughter. In this regard, the prosecutor argued (Tr. 2112-13) that the jury need not be unanimous as to which of the reckless acts the jury found and erroneously "instructed" them, over defense counsel's objection, that, to establish recklessness, it could find any one of them (cf. People v Robert Derian, _ A.D.3d_, 2014WL5365982, *1 [Pt Dept. 10-23- 14] [court erred in declining to instruct the jury that proof of legal intoxication was insufficient in itself to prove the element of recklessness required to establish second degree manslaughter, but error was harmless.]). 116 In either case, Defendant-Appellant suffered substantial prejudice by the admission of the prior "bad acts" evidence (see CPL 470.05[1]). For one, the only logical explanation for the verdicts is the admission, over repeated objections, of the described bad acts evidence tending to show, as the prosecutor forewarned it would: (1) a propensity for generalized recklessness; (2) Defendant-Appellant as being a "bad" or "unworthy"mother; and (3) a theory for her daughter's death not alleged in the indictment. Based on the prosecutor's argument in justification of the inconsistent verdicts, the obvious distinction between the Kellys and Baby ___ is that Defendant-Appellant's alleged chronic abuse of prescription medication, as the prosecutor argued on summation, may have been the cause of her baby's death, adding, "we'll never know" (Tr. 2116). But Defendant-Appellant's alleged conduct in abusing prescription medication could not have caused, or even contributed to, the Kellys' deaths, particularly since, by their verdicts, the jury unanimously found that, contrary to the prosecutor's argument about impairment "to any extent" (Tr. 2084-85), Defendant-Appellant was impaired to no extent when the fatal automobile accident occurred. The evidentiary distinction between the Kellys and Defendant-Appellant's baby daughter is critical to the jury's verdict finding, beyond a reasonable doubt, 117 that, from the same motor vehicle accident, Defendant-Appellant was not guilty of recklessly causing the deaths ofMr. & Mrs. Kelly, but was guilty of recklessly causing her baby daughter's death. Second, in a similar vein, a component of the defense was that Defendant- Appellant suffered a spontaneous placental abruption moments before the fatal accident, thereby causing her to lose consciousness and control of her automobile. Indeed Defendant-Appellant's OB/GYN, Dr. John Petraco, testified as a People's witness, inter alia, that: (1) Defendant-Appellant suffered a placental abruption, and he described what occurs as a consequence of that event; and (2) that the placental abruption could have been spontaneous and caused the accident rather than the abruption being caused by the accident itself(see ante, at 47-49). And the Medical Examiner, Dr. Sims-Childs testified that, in her opinion, to a reasonable degree of medical certainty the cause of Baby ___ ' s death was her injuries from a placental abruption (see ante at 42-43). Analytically, what this means is that, for the jury to find that Defendant- Appellant did not recklessly drive her automobile, they found that she suffered a spontaneous placental abruption, thereby causing her to lose control of the vehicle she was driving. Most assuredly, that defense would exonerate her as to the deaths of the Kellys. But that would not necessarily answer the manslaughter in 118 the second degree charge as to Baby---·' particularly given the prosecutor's new theory of recklessness that Defendant-Appellant was a "bad mother" and reckless in Baby ____ 's prenatal care, as established by the "bad acts" evidence presented at trial. These circumstances showing "the causation element can differ between the Kellys and the baby," argued by the prosecutor (Tr. 2239), explains how, in her view, and apparently in the court's view, the not guilty verdicts as to the Kellys, and the guilty verdict as to Baby ___ , could coexist. But the guilty verdict is based on erroneously admitted evidence establishing an invalid theory of recklessness. Third, if the answer is that the difference in the verdicts is because of the "seven reckless acts" the prosecutor identified for the jury in her summation (Tr. 2083; 2112), any one of which the prosecutor erroneously instructed the jury, over defense counsel's objection, would be sufficient to convict (Tr. 2083; 2012-13), Defendant-Appellant was still substantially prejudiced by the admission of the "bad acts" evidence. That is because the one (ofthe seven) alleged "reckless acts" that distinguishes, again, the Kellys from Baby ___ , is the seatbelt act, which according to the prosecutor, Defendant-Appellant was not wearing when the crash 119 occurred. The significance of the "bad acts" evidence to the seatbelt was that, both the alleged failure to wear the seatbelt (the evidence on this being inconsistent), and the alleged chronic abuse by Defendant-Appellant of prescription medicine, and alcohol, were part and parcel of the prosecutor's trial and summation strategy to portray Defendant-Appellant as a "bad" or "unworthy" mother. As examples, the prosecutor argued that, when Defendant-Appellant's vehicle hit the Kellys' vehicle at fifty miles per-hour, she was not wearing a seatbelt so that "there is no protection for Baby _____ . There's nothing to stop her from going right into the steering wheel" (Tr. 2093-94). The prosecutor, over objection (Tr. 2094), then analogized what happened in the car crash to "a month later and Baby __ _ had been born. Now the defendant is driving with the baby unrestrained in the back seat" (Tr. 2094), adding that, "[b ]ecause this is the same thing. The only difference is that the only person Baby could rely on was the defendant the only one that could protect her was the defendant. But, she did nothing to protect her that day and she did everything to harm her" (Tr. 2094-95). Fourth, how the evidence was used by the prosecutor went well-beyond what the court stated, on the record, the purpose( s) was/were for admission. 120 Initially, when it modified its ruling to allow clonazepam, but not alprazolam, the court identified the testimony at trial number one as what "makes the prescription history of clonazepam relevant" at trial number two {Tr. 415; emphasis added). And, when the court modified its ruling at the beginning of the prosecutor's cross-examination ofDr. Middleberg, to include alprazolam, because of"door- opening", the following limitation was imposed by the court: "You can ask strictly in the context of tolerance * * * not that she took it -- but that she had been prescribed it * * * But that's it" {Tr. 1832; emphasis added. See ante at 96 for full quote). Obviously, these expressed limitations were not followed and, making the problem worse, there were no instructions to the jury about the purpose( s) for the evidence, leaving the jury free to consider the evidence for the purposes advocated by the prosecutor on her summation (see Huddleston v United States, 485 U.S. 681, 691-692 [1988]). Fifth, the court's ruling that defense counsel opened the door to the admission of alprazolam is simply wrong. Initially, it was the prosecutor, as part of her case in chief, who presented evidence about tolerance/cross-tolerance, and synergy, through Lori Arendt and Michael Katz. Defense testimony on the subject was first presented through Dr. Middleberg in response to their testimony. And, 121 nowhere in Dr. Middleberg's direct examination was any reference made to alprazolam. Defendant-Appellant's presentation of expert testimony in response to the testimony presented by People did not open the door to allow the court to modify its previous ruling to exclude any mention of alprazolam -- the medication not even alleged by People to have been found in her "system". Not only was the prosecutor permitted to admit into evidence the prescription history on alprazolam, but contrary to the court's limitation on that evidence, the prosecutor argued that she abused that drug as well. Defendant-Appellant's fair trial and due process rights were prejudiced by the admission at trial of evidence pertaining to her prescription medication history during her pregnancy which ended with the death of her baby daughter. The conviction should be reversed and a new trial ordered. 122 POINT FOUR THE PROSECUTOR'S SUMMATION COMMENTS PREJUDICED DEFENDANT -APPELLANT'S RIGHTS TO A FAIR TRIAL. In People v Zimmer, 51 N.Y.2d 390, 392 (1980), this Court, citing Berger v United States, 295 U.S. 78, 80 (1937), reaffirmed the well-settled proposition that the District Attorney's function is not merely to prosecute the case, but to "achieve a just result." Because "they are charged with the duty not only to seek convictions but also to see that justice is done" (People vSteadman, 82 N.Y.2d 1, 7 [1993]), prosecutors "have special responsibilities*** to safeguard the integrity of criminal proceedings and fairness in the criminal process" (People v Huntsman, 96 A.D.3d 1387, 1388 [4th Dept.], lv. denied, 20 N.Y.3d 1099 [2012], quoting People v Santorelli, 95 N.Y.2d 412, 421 [2000]). In People v Ashwal, 39 N.Y.2d 105, 109-10 (1976), this Court warned that, "although counsel is to be afforded the widest latitude by way of comment, denunciation or appeal in advocating [her] cause*** summation is not an unbridled debate in which the restraints at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits. It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay with in the four comers of the evidence * * * and avoid irrelevant comments which have no bearing on any legitimate issue 123 in the case * * *. Thus, the District Attorney may not refer to matters not in evidence * * * or call upon the jury to draw conclusions which are not fairly inferable from the evidence * * *. Above all [she] should not seek to lead the jury away form the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant * * * [She] may not, for instance, try to convey to the jury by insinuation, suggestion or speculation, the impression that the defendant is guilty of other crimes not in issue at trial * * * [citations and internal quotation marks omitted]." These "well-defined limits" (id., at 1 09), were violated by several of the prosecutor's summation comments, the cumulative effect of which (People v Riback, 13 N.Y.3d 416, 423 [2009], citing People v Calabria, 94 N.Y.2d 519, 523 [2000]), "overwhelm[ed] [Defendant-Appellant's] right to a fair trial" (Riback, 13 N.Y.3d, at 423). At the outset, we note for this Court's attention that in every instance defense counsel objected to the prosecutor's improper summation comments cited in this Point, the court: (1) overruled the objection (Tr. 2113; 2116); (2) overruled the objection with the bland explanation that "this is summation" (Tr. 2071; 2101; 2108); (3) did not rule on the objection, in one instance asking counsel, "[g]rounds" (Tr. 2091), and then stated for the jury that neither counsel were witnesses and what they say is not evidence (Tr. 2091) or "duly noted" or "noted" 124 (Tr. 2094; 21 04). Thus, '" the court was mild in his reproofs and the jury may have gotten the impression that the judge considered the prosecutor's tactics to be necessary and proper"' (People v Grice, 100 A.D.2d 419, 423 [4th Dept. 1984] quoting, People v Steinhardt, 9 N.Y.2d 267, 271 [1961]). By way of comparison, all of the prosecutor's objections to the defense summation were sustained (Tr 2024; 2035; 2047), and, on one occasion, an "objection" was sustained when none was made (Tr. 2015). In his pre-summation instructions to the jury, Justice Condon, inter alia, told them that, "if during the summations I sustain an objection to a comment of a lawyer, that comment will be stricken from the record and you must disregard it as if it were never said" (Tr. 2015). The point is that the jury remained free to consider all of the prosecutor's improper remarks for the purpose(s) suggested by the prosecutor. This Court's observation in People v Ashwal, 39 N.Y.2d, at 111, supra, is particularly appropriate: "but when, as here, the court overruled the defense's objections, and gives standing to the statement of the district attorney as legitimate argument [citation and internal quotation marks omitted], the possibility of prejudice is greatly enhanced" (see also People v Payne, 187 A.D.2d 145, 250 [4th Dept. 1998] ["court's imprimatur"]). 125 For one, there are the comments referred to ante, Point Three, at 110-13, which: ( 1) impermissibly changed the theory of the prosecution by arguing that the cause of Baby 's death may have been Defendant-Appellant's alleged abuse of prescription medication during the pregnancy, (see People v Abeel, 67 A.D.3d 1408, 1410 [4th Dept. 2009] ["there are*** cases in which*** the prosecutor's comments on summation impermissibly change the theory of the prosecution"]); (2) diluted the burden of proof by arguing "we'll never know" when commenting about the "causation element" (Tr. 2239); (3) appealed to the jurors' sympathies, emotions and rage against Defendant-Appellant, in effect "demonizing her", by comparing and contrasting Defendant-Appellant's supposed concern for herself, rather than her unborn baby daughter, in the immediate aftermath of the accident, with the selfless concern manifested by Mrs. Kelly at the scene for her husband; and, (4) speculated about Defendant-Appellant being "self medicating," addicted, an abuser of prescription medication, and taking the medication with alcohol, and being an overall "bad" or "unworthy" mother, who did nothing to protect her unborn child "that day and she did everything to harm her" (Tr. 2094-95) --as if this case were based upon intentional, rather than reckless, conduct. Second, the prosecutor incorrectly instructed the jury twice on reckless conduct, informing them that, of the seven reckless acts she identified, the jurors 126 need not agree on which ones applied, adding that "[t]he point is that*** [a]ny one of them alone can proof [sic] her reckless acts that day" (Tr. 2113; emphasis added). Defense counsel's objection "to that interpretation of the law" remarkably was "[o]verruled" (Tr, 2113), and nothing was said by the court in the final charge to correct this misstatement. The law is well-settled that a prosecutor may not instruct the jury on the law (see People v Sepulveda, 105 A.D.2d 854, 857 [2d Dept. 1984]; People v Robinson, 85 A.D.2d 857 [2d Dept. 1981]). Moreover, given the jury's mixed verdicts, and the prosecutor's explanation about "the causation element" (Tr. 2239), it cannot be said that the error was harmless (cf. People v Safian, 46 N.Y.2d 181, 190 [1978]). Third, the prosecutor mischaracterized the evidence to support her unsworn and unsolicited opinion that Defendant-Appellant was "self-medicating" and addicted, arguing that she "ha[ d] four times her dosage" of clonazepam in her system (Tr. 2087; 2014) because four pills were missing from the bottle found on her person. But there was no evidence about when, if at all, Defendant-Appellant consumed any of those prescribed pills, and all witnesses agreed that there was no way to determine when the medication was taken. More tellingly, however, was the testimony of People's witness Lori Arendt that, in the one test in which 127 clonazepam was detected, the amount was "a low level" (Tr. 1144) --"below what we would report" (Tr. 1122-23; 1136; 1144; 1160-62; 1180-86; 1205). The prosecutor distorted the evidence, over defense counsel's two objections, by comparing Defendant-Appellant's alleged failure to wear a seatbelt to placing a baby born alive "a month later", "unrestrained in the back seat" of her car (Tr. 2095-96): "She has alcohol and drugs in her, she's speeding, she going in the wrong lane, she's hitting another car head on. And the baby is in the back seat unrestrained. How do you feel about that? Because this is the same thing. The only difference is that the only person Baby could rely on was [Defendant-Appellant], the only one that could protect her was the defendant. But she did nothing that day to protect her and she did everything to harm her" (Tr. 2094-95; emphasis added). The prosecutor speculated, with no basis in the record that, for the fifty- eight minute "gap" between the time she left Michael's Craft Store, and the accident occurred, Defendant-Appellant, who is "clearly addicted to these medications*** she's self-medicating" (Tr. 2104), went home "and had a couple of shots of vodka to calm her nerves" (Tr. 21 02; 21 04-05). The prosecutor asked the jury rhetorically, "is it really that much of a stretch" (Tr. 21 04-05), or, "why is that so easy to believe and not outlandish?" (Tr. 2102), admitting that "we don't 128 know, we saw no evidence. *** So there's fifty-eight minutes that are unaccounted for" (Tr. 2012). And, Defendant-Appellant's burden shifting objection was overruled (Tr. 2101). Finally, the prosecutor inappropriately, and incorrectly, informed the jury about Defendant-Appellant's sentencing exposure if convicted, ostensibly in response to defense counsel's unobjected to comments. The prosecutor said: "[Defense counsel] mentioned to you that it's insulting that we would bring this case before you with such lack of proof, that we would try to get her in jail with such lack of proof. What's insulting is that he didn't tell you. is that she can get straight probation on these counts" (Tr. 2071; emphasis added). Defense counsel objected, stating "[a]nd it's not true, either, to the B felony" (Tr. 2071). Once again the court overruled the objection, stating, "[t]his is summation. Again, ladies and gentlemen neither lawyer is a witness in this case" (Tr. 2071). After summations, defense counsel moved for a mistrial, arguing that "[i]t's completely improper for the ADA to suggest to this jury that if she's convicted of a B felony she can get probation. That's not their purview at all, to consider sentencing.*** the maximum [for the B felony] is eight-and-a-third to twenty- five" (Tr. 2117 -18). 129 The court denied the motion, stating "[y]ou brought it up in your summation, and I'm going to give that curative instruction that both of you should be ignored.*** The motion is denied. I will be giving a-- you brought up jail in your summation and [the prosecutor] brought up probation in her summation. I am going to tell the jury to ignore both comments." (Tr. 2118). As promised, the court instructed the jury that, "in his summation [defense counsel] made a reference to potential jail time. Likewise, [the prosecutor] made a reference to potential probation. You are to disregard both remarks. All right? As neither the attorneys, nor frankly you, would have any say in any potential sentence. If there's a verdict of guilty it will be my responsibility to impose an appropriate sentence, and you must strike any references to sentence from your mind at this time" (Tr. 2122-23). Nothing was said to the jury that the prosecutor's statement, about "get[ting] straight probation on these counts" (Tr. 2071), was wrong. But an examination of the record reveals that the prosecutor's response, under the guise of invited response to defense counsel's unobjected to summation comments. "went [well] beyond what was necessary 'to right the scale' in the wake of defense counsel's [imagined] misconduct" (United States v Young, 4 70 u.s. 1, 14 [1985]). In his summation defense counsel, trying to impress upon the jury the 130 gravity of the case, referred to: "very serious felony charges. This is a criminal case" (Tr. 2018; 2050; 2058; 2063; 2068); "all these issues riddled with doubt and they ask you to pass a conviction" (Tr. 2019-20). One reference was made by defense counsel to incarceration-- "But when you're accusing someone, you want to put them behind bars, you better have the ideal evidence" (Tr. 2058-59). This is hardly the equivalent of what was said by the prosecutor. Moreover, two references were made to "insulting"-- one reference was to the questioning of People's witnesses whether Defendant-Appellant "ask[ed] about the baby," which was a comment by defense counsel to explain why he "put in[to evidence] the birth announcements that she bought that day" (Tr, 2036-37). The second reference to "insulting" was to the testimony in which "they [the prosecutor] took two individuals and paraded it here just to pull at your heartstrings. Again that's insulting" (Tr. 2038). And, at one point, defense counsel described as "ludicrous" (Tr. 2057), testimony from People's witness Mr. Gerry who "didn't want to admit that his testimony was wrong at the Grand Jury and actually blamed the court reporter" (Tr. 2057). What was perceived by the prosecutor as improper comments by the defense was simply exaggerated by her to justify her own improper remarks. The cumulative effect the improper comments was to prejudice Defendant- 131 Appellant's "self-standing" right to a fair trial (People v Clyde, 18 N.Y.3d 145, 157-58 [2011], citing and quoting People v Crimmins, 36 N.Y.2d 230, 238 [1975]; People v Hicks, 100 A.D.3d 1379, 1380 [4th Dept. 2012]), such that the conviction should be reversed and a new trial ordered (see People v Riback, 13 N.Y.3d 416, 423 [2009]; People v Calabria, 94 N.Y.2d 519, 523 [2000]). 132 POINT FIVE THE SENTENCE IMPOSED WAS ILLEGAL Defendant-Appellant was sentenced as a first time felony offender, on her conviction for Manslaughter in the Second Degree, to an indeterminate term of imprisonment of three years to nine years. On appeal, Defendant-Appellant argued, inter alia, that her sentence was illegal in that it was based upon acquitted conduct. The Appellate Division affirmed, rejecting the contention (A. 4), finding that it was "unpreserved for appellate review*** and, in any event,*** without merit" (A. 4). The Order of the Appellate Division should be modified by vacating the sentence imposed, and remanding for resentencing before a different Justice of the Supreme Court, Suffolk County. Before pronouncing sentence, Justice Condon, acknowledged that he was sentencing Defendant-Appellant for the death of her baby daughter only, stating that "obviously the Kellys lost their lives in the accident * * * [and] this was a very serious offense that resulted in three deaths" (Sent. Mins., at 39). Clearly this was wrong because, by their verdicts, the jury said that this was a very serious offense resulting in one death. Defense counsel said nothing to the court about sentencing Defendant- 133 Appellant on the basis of acquitted conduct. But by acknowledging that the law permitted him to sentence "based on the death only of Baby __ " and then adding, incorrectly, that the offense had resulted in three deaths, the inference to be drawn from the court's sentencing statement is that Justice Condon more than even considered the acquitted conduct, and "specifically confronted and resolved the issue," such that "preservation was adequate" (feople v Feingold, 7 N.Y.3d 288, 290 [2006]). What remains is the Appellate Division's conclusion, without any explanation, that the claim was meritless, citing two of its prior cases for that proposition, which were similarly devoid of any explanation. Was the claim meritless because, in New York, the sentencing court can base a sentence on acquitted conduct, or was it that the record did not support the contention that the sentence was based on acquitted conduct? If the answer is the latter, any doubt about what the sentence was based upon should be resolved by the transcript in People v Charlotte DePersia, Suffolk County, Ind. No. 0215-11, --violation of probation hearing in an unrelated intoxicated driving case before Justice Condon three days after Justice Condon sentenced Defendant-Appellant in this matter. The certified transcript was obtained by counsel for Defendant-Appellant in March, 2014, during the 134 submission of arguments to the Ron. Robert Smith, Associate Judge, on the application for leave to appeal, and sent to him with a request that the certified transcript be judicially noticed and considered by him on the leave application. We again request that the transcript, though not a part of the record on appeal, be judicially noticed by the Court.34 In this regard, the court, in Brandes Meat Corp. v Cromer, 146 A.D.2d 666, 667 [2d Dept. 1989]), noted that, "[t]he Court of Appeals has also recognized a narrow exception [to the general rule that documents which were not submitted to the court of original instance may not be considered on appeal], which allows the consideration, on appeal, of reliable documents, the existence and accuracy of which are not disputed, even for purposes of a modifying or reversing the order under review [citing cases]." According to the transcript of the June 26, 2012 proceeding, Justice Condon said to the defendant Depersia, after she apologized for violating the terms of her probation: "THE COURT: You know, just two days ago, three days ago, I sentenced somebody just like you to nine years, because that person was intoxicated by a combination of prescription drugs and alcohol and killed three people. That could have been you. Thankfully it wasn't. Thankfully the victims here have recovered. The baby 34A certified copy, which is already in this Court's files from the application for leave to appeal, can be forwarded upon request. 135 was hom without incident, but you realize that could have been you. *** I do take these cases very seriously as witnessed by the sentence that I pronounced the other day. Should you end up doing something similar, that will be you. You don't want that" (Transcript, at 32, 34; emphasis added). Clearly, Justice Condon was comparing the defendant DePersia and Defendant-Appellant. Justice Condon told defendant DePersia that he sentenced Defendant-Appellant because (1) she was intoxicated by a combination of prescription drugs and alcohol; and (2) she killed three people. But Defendant-Appellant was not charged with being intoxicated; rather, she was charged with being "impaired" "to any extent," and after all the arguments on the subject, Justice Condon well-knew that one drug (clonazepam), and not drugs, had been alleged. Regardless, the jury acquitted Defendant-Appellant of being "impaired to any extent." Furthermore, the jury acquitted Defendant- Appellant of two deaths, and convicted her on one. If what the Appellate Division meant by "without merit" (A. 4) was that a sentencing court can consider acquitted conduct, that is a marked departure from its prior cases on that subject, as well as cases elsewhere in this State. In the federal system, a sentencing court may consider acquitted conduct to 136 enhance a sentence under the United States Sentencing Guidelines "so long as the conduct has been proved by a preponderance of the evidence" (United States v Watts, 519 U.S. 148, 156-57 [1997]). Notwithstanding the age of Watts, no court in this State has endorsed such a result, referred to in the dissent as "perverse" (id., at 164 [STEVENS, J., dissenting]), providing for the enhancement of a sentence on the basis of acquitted conduct. Thus, the First and Second Departments have held that a defendant's sentence may not be based on acquitted conduct (see People v Schrader, 23 A.D.3d 585, 586 [2d Dept. 2005] [citing cases]; People v Black, 33 A.D.3d 338, 342-43 [1st Dept. 2006] [citing cases]). But in People v Zowaski, 31 Misc.3d 242, 248 (City Court, City ofMiddletown 2011), the City Court, recognizing the appellate authority in the First and Second Departments, noted that the Third Department seemed to be moving in Watts' direction. The City Court, sentencing a defendant on a resisting arrest charge, after the jury had also acquitted the defendant on a driving while intoxicated charge, said: "I hold that a sentencing court may consider evidence related to a charge of which the defendant has been acquitted where the evidence was not presented to the jury and has been established to the court's satisfaction by a preponderance of the evidence" (31 Misc.3d, at 137 250). In this case, it is clear from Justice Condon's statements that, more than enhancing the sentence imposed, Defendant-Appellant's sentence was based on the acquitted conduct squarely rejected by the jury. The Appellate Division's Order of Affirmance should be modified by vacating the sentence and remanding the case for resentencing before a different Justice of the Supreme Court. 138 CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED AND FOR THE REASONS STATED IN POINTS ONE AND TWO, THE CONVICTIONS SHOULD BE REVERSED AND THE REMAINING COUNT IN THE INDICTMENT DISMISSED. ALTERNATIVELY FOR THE REASONS STATED IN POINTS THREE AND FOUR, THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. FOR THE REASONS STATED IN POINT FIVE, THE SENTENCE SHOULD BE VACATED AND THE MATTER REMANDED FOR RESENTENCING BEFORE A DIFFERENT JUSTICE OF THE SUPREME COURT, SUFFOLK COUNTY. Dated: New York, New York November 12, 2014 By: 139 Respectfully submitted, MISCHEL & HORN, P.C. Attorney for Defendant-Appellant One Whitehall Street Tenth Floor New York, New York 10004 (212) 425-5191