| People v Jorgensen |
| 2014 NY Slip Op 00379 [113 AD3d 793] |
| January 22, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jennifer Jorgensen, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato and EdwardBannan 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 seconddegree, 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 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt of manslaughter in the second degree beyond areasonable doubt (see People v Heinsohn, 61 NY2d 855, 856 [1984]; People v Hall, 68 AD3d1133 [2009]; People vJenneman, 37 AD3d 736, 737 [2007]; People v Hart, 266 AD2d 698,700 [1999]; People v Patti, 229 AD2d 506, 507 [1996]). Moreover, in fulfillingour responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord 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 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that she was deprived of a fair trial by the admission ofcertain evidence relating to her prescription drug history is partially unpreserved forappellate review since she failed to object to the introduction of some of the challengedevidence (see CPL 470.05 [2]; People v Erskine, 90 AD3d 674, 675 [2011]; People v Laigo, 70 AD3d970, 971 [2010]). In any event, the trial court did not improvidently exercise itsdiscretion in admitting the majority of the challenged evidence, since it was relevant andnot unduly prejudicial to the defendant, or was "reasonably necessary to correct themisleading impression" conveyed by the incomplete testimony the defense elicited fromits expert toxicological witness (People v Massie, 2 NY3d 179, 184 [2004];see People v Blair, [*2]94 AD3d 1403, 1404[2012]; People v Wilson, 293 AD2d 767, 768 [2002]). To the extent that thetestimony concerning the risks one of the prescribed medications poses to pregnantwomen may have been improper, the introduction of such testimony was harmless, as theevidence of the defendant's guilt was overwhelming and there is no significantprobability that this testimony contributed to her conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]). Furthermore, the introduction of thistestimony did not deprive the defendant of a fair trial.
The defendant's claim that certain comments made by the prosecutor during heropening statement and summation were improper and denied her a fair trial is largelyunpreserved for appellate review since she either failed to object to the remarks she nowchallenges, made only a general objection, objected on grounds other than thosecurrently raised, or failed to request additional instructions when the court gave curativeinstructions, and she failed to move for a mistrial on the specific grounds she now assertson appeal (see CPL 470.05 [2]; People v Arena, 70 AD3d 1044, 1047 [2010]). In anyevent, the challenged portion of the prosecutor's opening statement was not impropersince it was "a fair outline of the stark facts" (People v Rogha, 213 AD2d 266,266 [1995] [internal quotation marks omitted]), served to introduce the People's theory ofthe case, and was consistent with the evidence they proceeded to present (see Peoplev Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]). In hersummation, the prosecutor did not impermissibly attempt to shift the burden of proof (see People v Wongsam, 105AD3d 980, 981 [2013]; People v Gross, 78 AD3d 1196, 1197 [2010]). Withrespect to the remaining challenged summation remarks, they constituted fair commentupon the evidence or fair response to the defense summation (see People vGalloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105,109-110 [1976]), or "were not so flagrant or pervasive as to deny the defendant a fairtrial" (People v Almonte, 23AD3d 392, 394 [2005]; see People v Svanberg, 293 AD2d 555 [2002]). Tothe extent that any prejudicial effect may have resulted from the challenged remarks, itwas ameliorated by the court's instructions (see People v Galloway, 54 NY2d at399; People v Safian, 46 NY2d 181, 190 [1978]; People v Evans, 291AD2d 569 [2002]; People v Armonte, 287 AD2d 645, 646 [2001]; People vRobinson, 83 AD2d 887 [1981]).
The defendant's contention that the imposed sentence was improperly based on thecrimes of which she was acquitted is unpreserved for appellate review (see CPL470.05 [2]; People v Harris,101 AD3d 900 [2012]; People v Stanley, 50 AD3d 1066, 1067-1068 [2008]) and,in any event, is without merit (see People v Harris, 101 AD3d at 900; Peoplev Robinson, 250 AD2d 629, 629 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Leventhal, Chambers and Lott, JJ., concur.