23-Week-old Child Who Was Born Alive and Lived for 2 1/2 Hours After Removal from Life-Support Was a “Person” Within the Meaning of the Manslaughter Statute

The Fourth Department determined the 23-week-old child delivered by cesarean section was a “person” within the meaning of the manslaughter statute.  The child’s mother was severely injured in a head-on collision with defendant’s vehicle and the child was delivered to save the mother’s life. The child was taken off life-support because of the high risk of cognitive and neurological deficits and died 21/2 hours later. The court, in essence, determined the child was a “person” because she was born alive.

The Penal Law provides that a defendant “is guilty of manslaughter in the second degree when . . . [he or she] recklessly causes the death of another person” (§ 125.15 [1]). Furthermore, ” [p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive” (§ 125.05 [1]), and the Penal Law defines homicide as “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” (§ 125.00).

Defendant first contends that the evidence is not legally sufficient because, pursuant to the above statutory scheme, a child who is less than 24 weeks of gestational age is not a person. That contention is without merit. Penal Law § 125.00 uses the disjunctive “or” in defining who may be the victim of a homicide, and it is a well-settled rule of statutory interpretation that “[u]se of the conjunction or’ in a statute usually indicates that the language is to be construed in an alternative sense”… . Therefore, a victim who is born alive may be a person for the purposes of a homicide pursuant to section 125.00, regardless of whether he or she is less than 24 weeks of gestational age. People v Hardy, 2015 NY Slip Op 03961, 4th Dept 5-8-15