Tagged: reckless conduct

A Tragic Case Tests the Powers of Statutory Interpretation

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

As noted here previously, the New York Court of Appeals recently reviewed People v. Jorgensen, a case of a woman whose reckless driving caused her unborn child to suffer injuries that led to the child’s death six days after birth. Among other charges, the prosecution sought to convict the woman of second-degree manslaughter for recklessly causing the death of “another person,” the person here being the defendant’s baby daughter. The first jury to hear the case failed to reach a unanimous verdict. The jury in a second trial returned a verdict of guilty, which was affirmed by the Appellate Division, Second Department.

The legality of the conviction presented the Court of Appeals with a matter of first impression. Case law in the Appellate Division had previously upheld manslaughter convictions of defendants whose reckless acts directed against a pregnant woman resulted in the death of the child after birth. The issue now was whether a similar manslaughter conviction could be lodged against a pregnant woman for her own recklessness.

Writing only for himself in dissent, Judge Fahey marshaled powerful arguments that the applicable N.Y. Penal Law statutes, when read together and in their plain meaning, demonstrated that the defendant was guilty of manslaughter. He noted that recklessness, as defined by N.Y. Penal Law § 15.05(3), provides responsibility for future consequences of a defendant’s disregard of substantial and unjustifiable risks, and the consequence in this case was the death of a person born shortly after the reckless act.

The Court’s majority, however, reversed the conviction. The majority did not dispute that the victim of defendant’s reckless conduct was a person under the law at the time she died. Indeed, the majority’s own report of the facts and issues refers to the victim as a “baby” and as a “child.” Nevertheless, as a predicate for moving beyond the plain meaning of the applicable statutes referenced by Judge Fahey, the majority purported to find an ambiguity in their references to “person.”

It seems, however, that the ambiguity found by the majority does not in fact involve possibly different meanings of the word “person” as used in the statutes. The majority does not explicitly identify conflicting meanings of “person.” Moreover, the majority does not dispute the propriety of the manslaughter convictions in the Appellate Division cases referenced above, but simply distinguishes them as not involving charges against a pregnant woman.

Instead, what concerned the majority was that other Penal Law provisions in which the legislature provided for a pregnant woman’s responsibility for harm caused to her fetus, such as through self-abortion acts, classify the offense in question as a misdemeanor and require proof of the pregnant woman’s intent. Accordingly, the majority framed the statutory interpretation issue as: “whether the legislature intended to criminalize a mother’s own reckless conduct” – not the conduct of another – in a situation such as in this case.

Because the only penal statutes that unambiguously hold a pregnant woman criminally responsible for the death of a child she is carrying do so in a very different context, require proof of her intent, and provide only for a misdemeanor charge, the majority decided that a felony conviction based on a pregnant woman’s recklessness is not supported “under the current statutory scheme.” In the majority’s view, manslaughter liability in a case such as this is a matter for the legislature to decide prospectively after full consideration. It should not be initiated by a prosecutor’s charging decision and decided by a court without sufficient guidance by the legislature.

A complication in this case was that the defendant, when taken to a hospital after the accident, consented to an emergency cesarean section. In doing so, she was trying to save her child’s life. But the fleeting success of this effort also provided the basis for a manslaughter charge against her.

Seven years ago, defendant’s careless act placed in mortal danger the daughter she had been carrying in her womb for 34 weeks. It took two jury trials before the prosecution could obtain a manslaughter conviction against her. Because of the statutory ambiguity found by the Court of Appeals, the defendant’s conviction is reversed, and she will not have to serve the three to nine year sentence set by the trial court.

Sometimes life imposes harsher suffering than any sentence provided by law would.

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NY Court of Appeals Confronts a Tragic Case on Personhood

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On September 8, 2015, the N.Y. Court of Appeals heard oral arguments in People v. Jorgensen, in which Jennifer Jorgensen is appealing her second-degree manslaughter conviction for recklessly causing the death of her daughter, who died as a result of a head-on car collision in May 2008, allegedly caused by Jorgensen’s reckless driving.

At the time of the accident, the victim at issue was in the seventh or eighth month of gestation in Jorgensen’s womb. As stated in the case summary, “Jorgensen’s baby was delivered alive by emergency Caesarean section less than two hours after the accident, but died six days later.”

In June 2009, the Suffolk County Prosecutor indicted Jorgensen on several charges, including the manslaughter charge relating to the death of her child. The first trial ended with a hung jury. In the second trial, the defendant was only convicted on the charge of manslaughter for the death of her daughter and the sentence of three to nine years in prison was imposed. The Appellate Division Second Department affirmed the manslaughter conviction.

As set out by N.Y. Penal Law § 125.00, “Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first [or second] degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.” Penal Law § 125.05(1) adds that “‘[p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive.”

This is indeed a very sad and tragic case. Jorgensen argues that her manslaughter conviction was contrary to law because her daughter had not been born (and so was not a “person”) at the time she (Jorgensen) allegedly engaged in reckless conduct. She adds that she consented to the Caesarean section in an effort to save her baby’s life. The Prosecutor is arguing that because Jorgensen’s daughter was born alive, the child was a person under the law and Jorgensen must bear criminal responsibility for recklessly causing her death.

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NY Court of Appeals Issues an Opinion on Depraved Indifference

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The New York State Penal Code provides serious penalties in situations where a defendant’s reckless conduct toward others manifests “depraved indifference to human life” and exposes a victim to “a grave risk of death.” When these elements can be proven and the victim dies as a result, a defendant can be subject to conviction for second-degree murder, pursuant to N.Y. Penal Law § 125.25(2) (McKinney 2015). When the victim does not die, the defendant can be subject to conviction for reckless endangerment in the first degree, pursuant to N.Y. Penal Law § 120.25 (McKinney 2015).

In an opinion issued on February 19, 2015, the N.Y. Court of Appeals addressed the latter situation in the case of People v. Williams, 2015 N.Y. Slip Op. 01486 (Feb. 19, 2015). In this case, a prosecutor pursued a first-degree reckless endangerment charge against Mr. Williams because he did not disclose the fact that he knew he was HIV positive to a male partner with whom he had unprotected anal intercourse on several occasions and because Mr. Williams responded affirmatively to his partner’s questions about whether it was safe to engage in unprotected sex. The defendant’s partner subsequently became very ill, was diagnosed as HIV positive, and was put on a lifetime regimen of medications to stave off AIDS.

As noted in my previous post, in recent years the Court of Appeals has restricted the application of depraved indifference charges, finding that prosecutors often pursued such charges when not merited. Of particular relevance to the recent Williams case is this Court’s decision in People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267 (2005) holding that when a defendant’s reckless conduct endangers only one person, a prosecutor must show that the defendant exhibited “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts.”

In Williams, the grand jury returned an indictment on one count of first-degree reckless endangerment, N.Y. Penal Law § 120.25, and on one count of third-degree assault, N.Y. Penal Law § 120.00(2) (McKinney 2015). Upon defendant’s motion to dismiss both counts arguing legally insufficient evidence, the Supreme Court denied the motion as to the assault charge but reduced the reckless endangerment charge from first degree to second degree. The prosecutor appealed and the Appellate Division, Fourth Department, affirmed holding that viewing the evidence in the light most favorable to the prosecution, (1) the evidence was legally insufficient to support proof of the mental state requirement of depraved indifference and (2) given favorable medical advances in treatment of HIV positive patients, the defendant’s conduct did not expose the victim to a grave risk of death.

On further appeal, several civil rights, public health, and HIV advocacy organizations submitted, or joined in, amicus briefs supporting the defendant. The Center for HIV Law and Policy, on behalf of itself and several other groups, argued in its brief that “[u]sing the criminal law to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status reinforces prejudice and undermines important government-funded HIV testing, treatment, and prevention efforts.”

The Court of Appeals affirmed the Fourth Department’s decision and held that although it had no doubt that “defendant’s conduct was reckless, selfish and reprehensible,” the evidence presented to the grand jury was insufficient to support a prima facie case that the defendant acted with depraved indifference. Reviewing the testimony presented to the grand jury, the Court found that there was no evidence that “defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate.”

Given its holding on the failure of proof regarding the required mental state element, the Court of Appeals explicitly declined to address the “grave risk” element of whether, in light of modern medical science, HIV infection creates a grave risk of death.

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