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ALBANY, N.Y. (AP) — A Long Island woman urged New York's highest court to dismiss her manslaughter conviction in the death of her baby, who was delivered alive after a car crash but died days later.
Jennifer Jorgensen was acquitted by a jury of manslaughter for the couple killed in the 2008 head-on crash but was found guilty of recklessly causing her own daughter's death.
Defense attorney Richard Mischel told the Court of Appeals on Tuesday it's an unprecedented case and an impossible crime to commit.
"The purported victim was not in existence at the time in a legal sense," Mischel said, citing the penal law under which Jorgensen was convicted. At the same time, it's impossible to convict Jorgensen of a reckless act against herself, he said.
The baby was born by cesarean section almost immediately after the crash. It was Jorgensen's seventh or eighth month of pregnancy.
Suffolk County Assistant District Attorney Karla Lato argued that the infant was viable for living outside the womb at that point, but fell victim to her mother's reckless speeding, crossing lanes and failure to stop or wear a seat belt.
"We are recognizing the victim of a homicide can be a fetus of at least 24 weeks gestation," Lato said, citing New York law. "We're recognizing that a person who was a victim must be born alive."
Jorgensen was sentenced to three to nine years in prison, which was stayed pending her appeal.
Her first trial ended in a hung jury. At her second trial, she was acquitted of two other manslaughter charges, aggravated vehicular homicide and driving under the influence.
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