ALBANY -- New York's highest court Tuesday will hear the appeal of Jennifer Jorgensen, the Sound Beach woman who in the aftermath of a fatal 2008 car crash was convicted in the death of her baby born prematurely as a result of the accident, but acquitted of killing two people in the other vehicle.
The state Court of Appeals will weigh the penal-law definitions of homicide and "person" in trying to determine whether Jorgensen could be convicted of manslaughter in the death of a child who was injured in utero. Jorgensen's lawyer called it an "unprecedented case."
"The key question is whether or not she can be prosecuted for this crime," attorney Richard E. Mischel said.
Suffolk County District Attorney Thomas Spota didn't return messages to comment on the case.
The fatal accident occurred in May 2008 when a car driven by Jorgensen, who was eight months pregnant, collided head-on with another car on Whiskey Road in Ridge. The passengers in the other vehicle, Mary and Robert Kelly, died. Jorgensen's child was delivered by emergency Caesarean section after the accident, but died days later.
Jorgensen, now 36, was indicted on charges of manslaughter, aggravated vehicular homicide, driving under the influence of prescription drugs and alcohol, and endangering the welfare of a child. Her attorneys argued that she blacked out due to a pregnancy complication called a placental abruption.
Her first trial ended in a hung jury.
A second jury in 2012 acquitted Jorgensen of every charge except for manslaughter in connection with her baby's death -- a verdict that left both sides disappointed at the time. Jurors told Newsday that evidence alleging Jorgensen had been drinking was weak. But they said evidence that she was driving without a seat belt, taking the prescription drug clonazepam, speeding and talking on a cellphone constituted reckless conduct for a pregnant woman, leading to the manslaughter conviction.
Jorgensen was given a 3- to 9-year sentence but has been free on bail pending appeal.
A midlevel court upheld the verdict in 2014. Jorgensen has argued that she was improperly convicted.
"If the baby had not been born alive, she could not have been prosecuted for this crime," Mischel said, adding that Jorgensen agreed to the C-section but is, in a way, being prosecuted for it.
"If the baby had died, she would be facing nothing," Mischel said.