PEOPLE v. JORGENSEN

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Jennifer JORGENSEN, appellant.

Decided: January 22, 2014

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ. Mischel & Horn, P.C., New York, N.Y. (Richard F. Mischel of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato and Edward Bannan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Condon, J.), rendered June 22, 2012, convicting her of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence presented at trial in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the second degree beyond a reasonable doubt (see People v. Heinsohn, 61 N.Y.2d 855, 856; People v. Hall, 68 AD3d 1133; People v. Jenneman, 37 AD3d 736, 737; People v. Hart, 266 A.D.2d 698, 700; People v. Patti, 229 A.D.2d 506, 507). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946; People v. Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant's contention that she was deprived of a fair trial by the admission of certain evidence relating to her prescription drug history is partially unpreserved for appellate review since she failed to object to the introduction of some of the challenged evidence (see CPL 470.05[2]; People v. Erskine, 90 AD3d 674, 675; People v. Laigo, 70 AD3d 970, 971). In any event, the trial court did not improvidently exercise its discretion in admitting the majority of the challenged evidence, since it was relevant and not unduly prejudicial to the defendant, or was “reasonably necessary to correct the misleading impression” conveyed by the incomplete testimony the defense elicited from its expert toxicological witness (People v. Massie, 2 NY3d 179, 184; see People v. Blair, 94 AD3d 1403, 1404; People v. Wilson, 293 A.D.2d 767, 768). To the extent that the testimony concerning the risks one of the prescribed medications poses to pregnant women may have been improper, the introduction of such testimony was harmless, as the evidence of the defendant's guilt was overwhelming and there is no significant probability that this testimony contributed to her conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242). Furthermore, the introduction of this testimony did not deprive the defendant of a fair trial.

The defendant's claim that certain comments made by the prosecutor during her opening statement and summation were improper and denied her a fair trial is largely unpreserved for appellate review since she either failed to object to the remarks she now challenges, made only a general objection, objected on grounds other than those currently raised, or failed to request additional instructions when the court gave curative instructions, and she failed to move for a mistrial on the specific grounds she now asserts on appeal (see CPL 470.05[2]; People v. Arena, 70 AD3d 1044, 1047). In any event, the challenged portion of the prosecutor's opening statement was not improper since it was “a fair outline of the stark facts” (People v. Rogha, 213 A.D.2d 266, 266 [internal quotation marks omitted] ), served to introduce the People's theory of the case, and was consistent with the evidence they proceeded to present (see People v. Kurtz, 51 N.Y.2d 380, 384,cert denied 451 U.S. 911). In her summation, the prosecutor did not impermissibly attempt to shift the burden of proof (see People v. Wongsam, 105 AD3d 980, 981; People v. Gross, 78 AD3d 1196, 1197). With respect to the remaining challenged summation remarks, they constituted fair comment upon the evidence or fair response to the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399; People v. Ashwal, 39 N.Y.2d 105, 109–110), or “were not so flagrant or pervasive as to deny the defendant a fair trial” (People v. Almonte, 23 AD3d 392, 394; see People v. Svanberg, 293 A.D.2d 555). To the extent that any prejudicial effect may have resulted from the challenged remarks, it was ameliorated by the court's instructions (see People v. Galloway, 54 N.Y.2d at 399; People v. Safian, 46 N.Y.2d 181, 190; People v. Evans, 291 A.D.2d 569; People v. Armonte, 287 A.D.2d 645, 646; People v. Robinson, 83 A.D.2d 887).

The defendant's contention that the imposed sentence was improperly based on the crimes of which she was acquitted is unpreserved for appellate review (see CPL 470.05[2]; People v. Harris, 101 AD3d 900; People v. Stanley, 50 AD3d 1066, 1067–1068) and, in any event, is without merit (see People v. Harris, 101 AD3d at 900; People v. Robinson, 250 A.D.2d 629, 629).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

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