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

Brief

N.Y.Sep 8, 2015

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 Court of Appeals of the State of New York   THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, – against – JENNIFER JORGENSEN, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Of Counsel: RICHARD E. MISCHEL MISCHEL & HORN, P.C. Attorneys for Defendant-Appellant One Whitehall Street, 10th Floor New York, New York 10004 Tel.: (212) 425-5191 Fax: (212) 425-5890 Date Completed: March 31, 2015 TABLE OF CONTENTS PAGE Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 StatementofFacts..................................... 2 Point One Defendant-Appellant Was Convicted of a Crime That Was Not Legally Possible for Her to Commit Under New York Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Point Two The Evidence Was Not Legally Sufficient to Establish Defendant-Appellant's Guilt of Manslaughter in the Second Degree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Preservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Legal Sufficiency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 TABLE OF CASES PAGE STATE CASES CITED 9 Endresz v Friedberi, 24 N.Y.2d 478 [1969] People v Alfaro, 66 N.Y.2d 985 [1985] 12 People v Benzinier, 36 N.Y.2d 29 [1974] 13 People v Feiniold, 7 N.Y.3d 288 [2006] 13 People v Finch, 23 N.Y.3d 408 [2014] 13 People v Ford, 66 N.Y.2d 428 [1985] 13 People v Hall, 158 A.D.2d 69 [1st Dept.), lv. denied, 76 N.Y.2d 940 [1990] 3 People v Hardy, 30 Misc.3d 967 [Sup. Ct. Co. 2011] 3 People v Joriensen, 26 Misc.3d 1232[A][S.Ct. Suffolk Co. 2010] 9 People v Muhammad, 17 N.Y.3d 532 [2011] 14 People v Mussenden, 308 N.Y. 558 [1955] 11 People v Rayam, 94 N.Y.2d 557 [2000] 11 Matter of Gloria C. V William C., 124 Misc.2d 313 [Fam. Ct. Richmond Co. 1998] 8 Matter ofUnbom Child, 179 Misc.2d 1 [Fam. Ct. Suffolk Co. 1998] 8 Matter ofVanessa F., 76 Misc.2d 617 [Surrogate's Ct., New York 1974] 8 STATE STATUTES CITED CPL 330.30[1] CPL 470.05[2] Penal Law §15.05[3] Penal Law §125.00 Penal Law §125.05 Penal Law §125.05[1] Penal Law §125.17 Penal Law §125.45 Penal Law §125.50 Penal Law §125.55 Public Health Law §4164 12 13 14 4 6 4 20 6 7, 10 6, 7, 10 8 TABLE OF CASES PAGE STATE CASES CITED 9 Endresz v Friedberg, 24 N.Y.2d 478 [1969] People v Alfaro, 66 N.Y.2d 985 [1985] 12 People v Benzinger, 36 N.Y.2d 29 [1974] 13 People v Feingold, 7 N.Y.3d 288 [2006] 13 People v Finch, 23 N.Y.3d 408 [2014] 13 People v Ford, 66 N.Y.2d 428 [1985] 13 People v Hall, 15 8 A.D .2d 69 [1st Dept.), lv. denied, 76 N.Y.2d 940 [1990] 3 People v Hardy, 30 Misc.3d 967 [Sup. Ct. Co. 2011] 3 People v Jorgensen, 26 Misc.3d 1232[A][S.Ct. Suffolk Co. 2010] 9 People v Muhammad, 17 N.Y.3d 532 [2011] 14 People v Mussenden, 308 N.Y. 558 [1955] 11 People v Rayam, 94 N.Y.2d 557 [2000] 11 Matter of Gloria C. V William C., 124 Misc.2d 313 [Fam. Ct. Richmond Co. 1998] 8 Matter ofUnbom Child, 179 Misc.2d 1 [Fam. Ct. Suffolk Co. 1998] 8 Matter ofVanessa F., 76 Misc.2d 617 [Surrogate's Ct., New York 1974] 8 STATE STATUTES CITED CPL 330.30[1] CPL 470.05[2] Penal Law §15.05[3] Penal Law§ 125.00 Penal Law §125.05 Penal Law §125.05[1] Penal Law§ 125.17 Penal Law§ 125.45 Penal Law§ 125.50 Penal Law§ 125.55 Public Health Law §4164 12 13 14 4 6 4 20 6 7, 10 6, 7, 10 8 STATE OF NEW YORK COURT OF APPEALS --------------------------------------------------------------------------------}( THE PEOPLE OF THE STATE OF NEW YORK Plaintiff-Respondent, -against- APL 2014-00208 JENNIFER JORGENSEN, Defendant-Appellant. --------------------------------------------------------------------------------}( APPELLANT'S BRIEF PREL~INARYSTATEMENT JENNIFER JORGENSEN (Defendant-Appellant) has appealed to this Court, by permission granted by the Hon. Robert S. Smith, Associate Judge, on August 5, 2014, from a Decision & Order of the Appellate Division, Second Judicial Department, entered January 22, 2014, affirming a judgment ofthe Supreme Court, Suffolk County (Condon, J.), entered June 22,2012, convicting her of manslaughter in the second degree, upon a jury verdict, and imposing sentence. Defendant-Appellant is at liberty on bail pending appeal, a stay of judgment having been continued by Judge Smith on January 24, 2014. People responded on or about February 24,2014. Defendant-Appellant submits this Reply Brief limited to People's response to Points One, and Two of Defendant-Appellant's main brief. Defendant- Appellant will rely on the main brief and oral argument as to the remaining issues. STATEMENT OF FACTS Defendant-Appellant relies on the Statement of Facts set forth in her main brief at 2-67. To the extent that additional facts are needed for this Reply, they will be taken from the cited portions of the trial transcript. POINT ONE DEFENDANT-APPELLANT WAS CONVICTED OF A CRIME THAT WAS NOT LEGALLY POSSIBLE FOR HER TO COMMIT UNDER NEW YORK LAW. Conceding reviewability, People nevertheless argue that Defendant- Appellant was properly prosecuted for, and convicted of, manslaughter in the second degree for the death of her daughter, who was born alive but died six days later from injuries she sustained in utero. In support of their position, People principally rely upon third party liability cases, and proposed legislation in New York to amend the Penal Law article defining homicide to broaden the definition of"homicide" and "person." People's 2 position is meritless. For one, the two cases People rely upon, viz: People v Hall, 158 A.D.2d 69 (1st Dept.), lv. denied, 76 N.Y.2d 940 (1990) (cited and discussed in Defendant- Appellant's Main Brief, at 77), and People v Hardy, 30 Misc.3d 967 (Sup. Ct. Co. 2011 ), do not stand for the proposition that i! preiJlant mother can be held criminally liable for injuries recklessly inflicted on her unborn baby who dies from those injuries after birth. Rather, those cases recognize criminal liability of persons whose criminal conduct is directed at a pregnant woman (a "person"), whether that conduct was intentional, reckless, or negligent, and, as a result, the baby died, after birth, from the injuries received in utero. Indeed, People have yet to cite one New York case, other than the case at bar, in which a mother has been held criminally responsible for the death of her baby recklessly caused by injuries to the baby before the baby was born. As stated by Justice Milonas, writing for a unanimous court, in People v Hall, 158 A.D.2d, at 76, supra, "[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 negligently, from liability under the homicide statutes if the baby is born alive and subsequently expires from its prenatal wounds." 3 The reason for this is obvious. At the time the defendant in Hall intentionally shot the pregnant mother, or when the defendant in Hardy drove recklessly, they were then engaging in criminal conduct (intentional; reckless) in relation to a person - the pregnant mother. But when Defendant-Appellant allegedly drove her vehicle recklessly, she could not be a "victim" of her own criminal recklessness, nor was her unborn baby then a person, within the meaning of the homicide statute .. Second, the proposed legislation cited by People is equally unavailing. The proposed legislation (Senate Bill 2532), in relevant part, broadens the definition of homicide to include "conduct which causes the death of a person or an unborn child at any stage of gestation***." "Person" is to be defined under the proposed legislation as "a human being who has been born and is alive or an unborn child at any state of gestation." Under current 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***" (Penal Law §125.00). And "'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]). If adopted by the Legislature, New York will join those states that have 4 included "viable fetus" in the definition of a person or child (see Def-App Brief, at 76). A review of the legislative intent, and the New York State Introducer's Memorandum in Support, discloses that the proposed legislation is designed to close a "loophole in current law" relating to third party assaults on pregnant women resulting in their injury and/or death, as well as the injury and/or death of the unborn child. It is not intended to address the issues presented in the case at bar. As reported in the Memorandum In Support: "JUSTIFICATION: *** The[] two [current] definitions [of 'homicide' and 'person] have left it impossible for prosecutors and the courts to use the full extent of the law to punish those who viciously and knowingly take the life of an unborn child and/or its mother. This bill empowers New York prosecutors to seek justice for those who deliberately attack mothers and murder unborn children by changing the definitions of 'person' and 'homicide' to include unborn children at any stage of gestation. As is outlined in the bill's first section, the intent of this legislation is to close the loophole for killers of unborn children. It is not the intent of this legislation to stifle a woman's right to a consensual abortion or to medical treatment. As such, the bill specifically provides protections for mothers consenting to an abortion and to doctors who treat pregnant women." Clearly, then, the proposed legislation is not seeking to criminalize a 5 pregnant mother's conduct in relation to her unborn child beyond that which is currently recognized as criminal. Because of the broadened definitions, the exclusions in the proposed legislation relating to pregnant mothers clarify that, whatever is their criminal exposure under current law, the exposure will be no greater under the proposed legislation, notwithstanding the broadened defmitions of 'homicide' and 'person'. Indeed, included in the current definition of homicide are abortion in the first degree and self-abortion in the first degree, Penal Law §§125.45 and 125.55, both of which require a specific intent (Penal Law §125.05, subd. 2 [intent to cause a miscarriage]), and are limited to the third trimester. The proposed legislation does not appear to amend either of these sections. People make the further curious argument that, "because the senate sees a need to amend the homicide statute to exclude women like Jorgensen, who reckless [sic] cause an injury to their unborn child resulting in the death of their baby after birth from those injuries, the plain language of the statute currently includes mothers as criminally liable for their actions against their unborn [sic] who are born alive" (Resp. Br., at 26). But the purpose of the exclusion People rely upon for this remarkable assertion is to avert the possible interpretation of the those broadened definitions of"homicide" and "persons" so as to include a pregnant woman's intentional or 6 reckless conduct, other than the conduct already proscribed by §§ 125.50 and 125.55 of the Penal Law, which are not amended by the proposed legislation. Rather than legalizing conduct People argue is criminal under the current law, the proposed exclusion reaffirms the current law, as it applies to the unborn child's mother, notwithstanding the proposed broadened definitions. Also, there is nothing in the proposed legislation that is addressed specifically to the circumstance in Defendant-Appellant's case-- death occurring after birth from injuries received in utero, which injuries were allegedly caused by a pregnant mother's reckless conduct. Third, People's reliance on Public Health Law §4164 adds nothing of substance to the discussion. According to People, that section of the Public Health Law provides that "any viable birth immediately is given legal protection under the laws of New York, including protection under the *** penal law. Nowhere in that statute is a mother excluded from liability" (Resp. Br., at 24). We agree, and had Defendant-Appellant inflicted the injuries "immediately" upon birth, which were the cause of Baby 's death, Defendant-Appellant most assuredly would and should have been prosecuted for that death. Public Health Law §4164 does not apply the protections of the penal law, or any other law, retroactively to conduct occurring before birth. 7 Fourth, at 27-28 of their Brief, People cite to Family Court cases holding that an unborn child has a right to an Order of Protection under the Family Court Act (see Matter of Gloria C. V William C., 124 Misc.2d 313 [Fam. Ct. Richmond Co. 1998], and cases finding a child to be "neglected" under the Family Court Act by its mother during pregnancy (see Matter ofUnbom Child, 179 Misc.2d 1 [Fam. Ct. Suffolk Co. 1998] ([derivative neglect]); and Matter ofVanessa F., 76 Misc.2d 617 [Surrogate's Ct., New York 1974]). Interestingly, People relied on these cases in their opposition to Defendant- Appellant's motion to dismiss the count of the indictment charging her with endangering the welfare of a child. Granting Defendant-Appellant's motion to dismiss, Supreme Court found "these cases inapplicable to criminal proceedings involving the interpretation of the Endangering the Welfare of a Child statute. The standard in Family Court in determining neglect, orders of protection, and the like is 'the best interests of the child,' unlike a criminal case where the People must prove beyond a reasonable doubt that the accused has committed the crime charged" (People v Jorgensen, 26 Misc.3d 1232[A], *5 [S.Ct. Suffolk Co. 2010]). Notably, People did not appeal the dismissal of this count of the indictment. Moreover, the cases cited by People suffer from the same defects as the criminal cases relied upon by People, discussed ante, at 3-4. That is, the civil 8 (Family Court and Surrogate's Court) cases involve acts by third parties against the pregnant mother, or intentional acts by the mother, which derivatively affect their unborn children. Once again, Defendant-Appellant's conduct, which resulted in the death of Baby ____ ,, was alleged to be "reckless." Endresz v Friedber~, 24 N.Y.2d 478 (1969), also cited by People (see Resp. Br., at 27), is of no help to People, either. In that case, the issue presented, "[was] whether there is a right of recovery under the State's wrongful death statute (EPTL 5-4.1) ***by the personal representative of a stillborn foetus which died as a result of injuries received while en ventre sa mere" (id., at 481 ). Denying recovery under the State's wrongful death statute, this Court explained that "[t]he considerations of justice which mandate the recovery of damages by an infant, injured in his mother's womb and born deformed through the wrong [negligent acts] of a third party, are absent where the foetus, deprived of life while yet unborn, is never faced with the prospect of impaired mental or physical health" (id., at 484). That an infant injured in utero by the wrongful acts of a third party is entitled to damages, in recognition "of the legal right of every human being to begin life unimpaired by physical or mental defects resulting from the negligence of another" (id., at 483), hardly translates into criminal liability for a mother's unintentional acts causing injury to her unborn daughter, who is born 9 alive but thereafter dies as a result of those injuries. In the case at bar, Defendant-Appellant was accused of recklessly causing the death of her baby. Though the law criminalizes a mother's intentional conduct in terminating a pregnancy without justification in the third trimester (see Penal Law§§ 125.50 and 125.55), quite apart from the constitutional, privacy and policy concerns implicit in regulating and criminalizing a pregnant woman's conduct in the care of her unborn child, there simply is no identifiable crime holding Defendant-Appellant criminally responsible for the death of her baby recklessly caused by the injuries she received prior to birth. And for good reason -- the criminal law cannot be expected to micromanage a woman's conduct relating to the care of an unborn child (see Alm· Br., at 74-75, 82-84). The conviction should be reversed and the remaining count of the indictment dismissed. 10 POINT TWO THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO ESTABLISH DEFENDANT- APPELLANT'S GUILT OF MANSLAUGHTER IN THE SECOND DEGREE. Assuming, arguendo, that Defendant-Appellant was properly charged with manslaughter in the second degree, in connection with the death of her daughter, we nevertheless contend that the evidence was legally insufficient to convict her of that crime, particularly in light of the jury's acquittals on four of the five factually and legally interrelated counts (see People v Rayam, 94 N.Y.2d 557, 563 n. [2000]). People respond that the issue has not been preserved for this Court's review and, relying on the same tired evidence heard by two juries, and unanimously rejected by the second jury, argue that the evidence was not only legally sufficient, but overwhelmingly established Defendant-Appellant's guilt. Their explanation of the mixed verdicts is that, in acquitting Defendant-Appellant of four of five factually and legally interrelated (as opposed to lesser included) counts, the jury did so in the exercise of its "mercy-dispensing power" (People v Mussenden, 308 N.Y. 558, 562 [1955]). There should be a reversal and dismissal of the remaining count of the 11 indictment. A. Preservation. At pages 86-88 of our main brief, we have argued that, in addition to defense counsel's general motion to dismiss, acknowledged by People (Resp. Br., at 29-30), defense counsel's objections to the prosecutor's summation comments, and the arguments in support of his objections, coupled with the post-verdict motions, adequately preserved Defendant-Appellant's legal sufficiency claim, which did not arise until after the jury announced their mixed verdicts (Tr. 223 8- 29). Specifically, after the verdict, but before the jury were discharged, defense counsel announced that he had "a few oral motions and I would like to reserve my right to make them on papers" (Tr. 2238). Defense counsel then orally moved to set-aside the [guilty] verdict" -- essentially a sufficiency claim (see CPL 330.30[1]), or "to send the jury back in to continue deliberating on that count" (Tr. 2239) --an inconsistency/repugnancy claim (see People v Alfaro, 66 N.Y.2d 985 [ 1985]).1 Indeed, the prosecutor understood as much, arguing, in justification of the mixed verdicts, that the difference between the Kellys and Baby ___ _ was the evidence on the "causation element" (Tr. 2239), implying that, as to Baby 1No written motions were submitted. 12 __ _. the evidence on that element was sufficient to prove guilt beyond a reasonable doubt. And it was on that basis, in response to a protest by defense counsel, that the court denied the motion to set-aside the guilty verdict (see CPL 470.05[2]; People v Feingold, 7 N.Y.3d 288, 291 [2006]; People v Finch, 23 N.Y.3d 408 [2014]). As such, the issue presented was preserved for this Court's review. B. Legal Sufficiency. As they did at the Appellate Division, and on the application for leave to appeal, People present the evidence as though Defendant-Appellant was found guilty by the jury of the five counts in the indictment, instead of being acquitted of four of the five counts, and found guilty of the one manslaughter in the second degree count relating to the death of her daughter. People remind the Court that the standard for review of legal sufficiency is to view the evidence in the most favorable light to the prosecution, which includes the assumption that ''the jury credited the prosecution witnesses and gave the prosecution's evidence the full weight that might reasonably be accorded it" (People v Benzinger, 36 N.Y.2d 29, 32 [1974]. See People v Ford, 66 N.Y.2d 428, 437 [1985]). But in so doing, People are really advocating that the Court 13 review the evidence as presented by them at trial, in a light more favorable than did the jury. And it is only on this basis that People can argue, as they repeatedly have done, that the acquittals are to be "attributed to mistake, confusion, compromise or mercy" (People v Muhammad, 17 N.Y.3d 532, 545 [2011]). The evidence presented at trial by People, but ignored by them on appeal, demonstrates a substantial record basis for acquitting Defendant-Appellant-- evidence which the jury fully understood in reaching their verdicts. Also presented in the record, and discounted by People, is a substantial basis, consisting of improperly admitted evidence, which explains the conviction. Rather than extending mercy or leniency, or being confused or mistaken, the jury properly exonerated Defendant-Appellant of the deaths of Robert and Mary Kelly, and of being impaired "to any extent" because of the rank toxicological evidence presented at trial. Still the jury punished Defendant-Appellant by finding her criminally responsible for the death of her daughter on the basis of her prescription medication history, admitted for the illegitimate purpose of showing that she was predisposed to recklessness by taking the medication properly prescribed, knowing of its dangers to her unborn child. It was this supposed reckless behavior during Defendant-Appellant's pregnancy that the prosecutor argued on summation may have been the cause of Baby ___ death, but "we'll 14 never know" (Tr. 2116). In addition, evidence was presented that Defendant-Appellant suffered a spontaneous placental abruption, thereby rendering her unable to drive and/or control her car, negating the "risk factors" identified by People on summation as establishing Defendant-Appellant's alleged recklessness. Stated somewhat differently, having suffered a spontaneous placental abruption before the accident, which rendered her unconscious, Defendant-Appellant could not have been found to have consciously disregarded the risk allegedly created by her, as required by the statute (see Penal Law §15.05[3]). Beyond this, however, People present an appellate version of the evidence at trial, which is inaccurate, incomplete and misleading. As a first example, People continue to argue in essence that: (1) the blood sample taken from Defendant-Appellant upon her arrival at Stony Brook Hospital showed the presence of the drug clonazepam, and ethanol; (2) the blood taken, pursuant to a blood warrant, at the hospital some eight hours after her admission, showed the presence of clonazepam at a "low level" (Tr. 1144), below what is normally reported, but no alcohol was detected; (3) Baby 's blood and urine showed the presence of alcohol (Tr. 610; 871-79; 1243) consistent with what was found in Defendant-Appellant's specimens (Tr. 1312); and, (4) the inference 15 to be drawn from the foregoing, as the prosecutor argued, was that Defendant- Appellant was under the "combined influence" "to [some] extent", causing her to engage in the reckless conduct alleged. But People conveniently forget to inform the Court that: A. contrary to what is suggested by People's summary, the toxicological tests were not performed on the day the blood was drawn or any other day, at, or by, Stony Brook Hospital. People's witness, Michelle Byrne-- the "associate technical director of chemistry, hematology, the cancer lab, and the emergency STAT lab" at Stony Brook Hospital Center (Tr. 788) -- testified that, after blood and urine samples are collected from patients, they are sent to the lab for testing (Tr. 789-91). Stony Brook does not perform toxicology tests on blood specimens- -only on urine specimens because the hospital "[d]oesn't have a 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 is for diagnostics too" (Tr. 842-43). The samples are taken for "medical purposes" (Tr. 843). Also Baby 's blood was not drawn until she was first transfused, and hospital drugs had been administered to 16 her (Tr. 615; 653; 656). The volume of blood transfused was more than 50% of her blood volume. And Baby ___ 's urine sample was not obtained until the early morning hours of June 1, 2008 --she was born on May 30, 2008, at about 4:30p.m. (Tr. 607-08; 636). The test "came up positive for barbituates [Baby __ received phenobarbital from the hospital [Tr. 623]) and alcohol" (Tr. 61 0), but not for clonazepam. According to People's expert witnesses, however, by that time (some 40 hours after birth [Tr. 618]) one would expect that at least the alcohol would have been dissipated (see Tr. 1264-66; 1302-03 [Katz]). The presence of barbituates was discounted as having been administered by the hospital (Tr. 623); B. the toxicological tests were performed at the Suffolk County Toxicological lab on what remained of the Stony Brook blood specimens one month later. Quite remarkably, the tests included diluting the blood specimens tested by adding to it blood from other (unidentified) persons to increase the volume of the material tested. Moreover, the one month old blood specimens tested contained no preservatives or anticoagulants. The defense toxicology expert (Dr. Robert Middleberg, the laboratory director and vice president of quality assurance at NMS Labs in Willow Grove, Pennsylvania, and a practicing forensic toxicologist [Tr. 1764; 1769]) seriously questioned the test results, as well 17 as the unorthodox techniques and methodologies used by the Suffolk County Lab. Not surprisingly, the methodologies and techniques were endorsed by the very same Suffolk Toxicology Lab employees responsible for the testing and the results; C. the test performed on Defendant-Appellant's urine sample at 9:12p.m., on May 30, 2008, shortly after she left surgery, was negative, showing no alcohol, clonazepam, or for that matter any other drug (Tr. 1264-66; 1302-03; 1734-35; 1746-48; 1754; People's Exhiibt 69 [Defendant-Appellant's Hospital Records] 1416). What is remarkable about this evidence is that Dr. Michael Paccione (a defense witness) was the trauma surgeon at Stony Brook Hospital University Medical Center when Defendant-Appellant was admitted to the emergency room on May 30, 2008, at approximately 3:40 p.m. (Tr. 1004, 1724-28). The decision was made to perform "an emergent delivery with a C-section" (Tr. 1 726). She also underwent surgery for four hours (Tr. 1728-29). "Her right upper extremity, radius and ulnar [sic]" (forearm) were broken (Tr. 1729-30). She was taken into surgery at about 4:00 p.m.-4:30p.m. (Tr. 1742). According to Dr. Paccione, anesthesia was administered to Defendant- Appellant (Tr. 1746-48), specifically Versed-- a benzodiazepine, similar to 18 clonazepam (the same family); a muscle relaxant, Rocuronium; a narcotic, Fentanyl (Tr. 1229); Succinachol, Ine, Etomidale, and Propofal, all of which was confirmed by the Anesthesia Record included in People's Exhibit 69 --Defendant- Appellant's Hospital Records, showing that anesthesia began at 4:35p.m. (Tr. 1742), Baby ___ was delivered at 4:37p.m., and anesthesia ended at 9:08 pm. The Toxicology Report for Defendant-Appellant, also included in the Medical Records (People's Exhibit 69), shows that, on May 30, 2008, at 9:12p.m., a urine screen was performed for, among other things, benzodiazepines, barbituates and ethanol, and none of the items were detected. In his testimony Dr. Paccione stated that the results of the urine screen were negative for ethanol and benzodiazepine (Tr. 1734-35; 1746-48; 1754). Though the test was performed on the urine at 9:12p.m., showing that it was negative, no one knew when the specimen was actually obtained from Defendant-Appellant (Tr. 1267-68). But what is certain is that the specimen had to have been obtained before Defendant-Appellant went into surgery, and she received anesthesia at 4:35p.m. Had it been obtained after she went into surgery, the test would have revealed the presence of the seven drugs administered to her during the emergency C-section and surgery to repair her arm. The urine sample 19 tested, and found to contain nothing, including benzodiazepines and ethanol, had to have been obtained from Defendant-Appellant before she underwent the C- section and surgery for her arm, seriously undercutting People's expert testimony to explain that the absence of ethanol and clonazepam was due to the expected dissipation of those substances over several hours. Not surprisingly, then, the jury found Defendant-Appellant not guilty of being impaired to "any extent" as charged in aggravated vehicular homicide (Penal Law § 125.17), and operating a motor vehicle while under the combined influence of drugs or alcohol, or any drug or drugs, as a class A misdemeanor. Far from being jury mistake, confusion, leniency or mercy, as People speculate, the jury well-understood the significance of the irrefutable evidence that there were no drugs or ethanol in her system within two hours of the accident, and acted accordingly. Secondly, People state that, according to the Medical Examiner (Tr. 1411), the "baby's cause of death*** was prematurity and hypoxic encephalopathy due to placental abruption which was caused by blunt force trauma to Jorgensen" (Resp. Br., at 38). People also state that Defendant-Appellant's OB/GYN, Dr. John Petraco (a People's witness) testified that he had first seen Defendant- Appellant in November, 2007 (Resp. Br., at 14) in connection with her pregnancy 20 which ended in May, 2008, with Baby ___ 's death. People further state that Dr. Petraea routinely counseled his patients about drinking alcoholic beverages, taking medications and advised them to wear seatbelts (Resp. Br., at 13-14). But People conveniently forget that Dr. Petraea testified on the subject of placental abruptions, noting that there is "such a thing as spontaneous placental abruption that occurs without any obvious known -- I should say without any obvious known cause -- but happens without any precipitating factor that we can really identify. Such as trauma. Trauma would not be-- you know, there's a reason for it, so to speak. [It] just happens" (Tr. 564-55 [emphasis added])". There "can be" "intense pain" and there "can be" "blood loss" which can cause the person "[to] get lightheaded or lethargic" (Tr. 565). Dr. Petraco added that, in a "spontaneous placental abruption", blood pressure can "drop*** if there's enough blood loss" (Tr. 566). Finally, Dr. Petraea testified that, on May 30, 2008 (the date of the accident) Defendant-Appellant suffered a placental abruption (Tr. 580), but there was "no way for [him] to know" "to any degree of medical certainty whether or not [Defendant-Appellant] had a spontaneous abruption which caused the accident or if there was an abruption that was caused by the accident (Tr. 566- 67; 579-80). The injuries received by Baby ___ , according to the Medical Examiner, were received in utero, as a consequence of the abruption, whether or 21 not it was spontaneous. Had the abruption occurred spontaneously, i.e., before the accident, which Dr. Petraco said, without contradiction by other witnesses, was possible, the so- called "reckless factors," identified by the prosecution on her summation, indicating Defendant-Appellant's alleged loss of control of her Nissan Sentra would have been attributable to that event, and not to Defendant-Appellant's alleged reckless conduct. People have again distorted Dr. Petraco's testimony about counseling patients and when he first saw Defendant-Appellant professionally about her pregnancy. The simple facts are that, contrary to People's representations (Resp. Br., at 14), he did not first see her in November, 2007, at the outset of her pregnancy, which is when he customarily counseled his patients about drinking, prescription medications, wearing seatbelts and the like. Rather, Defendant- Appellant was seen by another (unidentified) member of Dr. Petraco's medical group, and, in any event, Dr. Petraco did not see Defendant-Appellant professionally until some four months later, in March 2008, making it unlikely that he counseled Defendant-Appellant about the aforementioned subjects (Tr. 505-06; 508-09; 510-13; 537). Indeed Dr. Petraco did not testify that he or to his knowledge anyone else counseled Defendant-Appellant on these subjects. 22 There is a substantial basis in the record -- evidence of a spontaneous placental abruption -- for the jury to have unanimously concluded that People failed to prove beyond a reasonable doubt that Defendant-Appellant acted recklessly when she drove her vehicle, and was involved in an accident with another vehicle. For the reasons set forth above, and in Point Two of the main brief, the conviction for manslaughter in the second degree should be reversed and that count of the indictment dismissed. 23 CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED AND FOR THE REASONS STATED IN POINTS ONE AND TWO, THE CONVICTION 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 March 31,2015 Richard E. Mischel Of Counsel By: 24 Respectfully submitted, MISCHEL & HORN, P.C. Attorney for Defendant-Appellant One Whitehall Street Tenth Floor New York, New York 10004 (212) 425-5191