People v. Wang

Decision Date07 May 1985
Citation490 N.Y.S.2d 423,128 Misc.2d 554
PartiesThe PEOPLE of the State of New York v. Yen WANG, Defendant.
CourtNew York Supreme Court

DONALD J. MARK, Justice.

The defendant was charged with the crime of Manslaughter 1st Degree in violation of Section 125.20(2) of the Penal Law. She allegedly while under the influence of extreme emotional disturbance caused the death of her newborn male infant by asphyxiation by placing two wads of paper in his throat. During the trial of this action two issues surfaced which depended for their resolution upon People v. Hayner, 300 N.Y. 171, 90 N.E.2d 23. The first was the application of the defendant for a trial order of dismissal, and the second was the instructions to the jury on the definition of live birth.

Since this case will be retried because of a deadlocked jury, and because of the dearth of case law in this area, it is felt that a written decision explaining the Court's rulings would be appropriate.

As has been indicated, the defendant based her application for a trial order of dismissal on People v. Hayner, supra.

In that case the defendant confessed that he had strangled the newborn baby of his daughter with its umbilical cord immediately after its birth and after he had heard the child cry. This confession was the only evidence of live birth except for the medical testimony. The Court of Appeals discounted the testimony of four medical experts that the child had been born alive and had a living existence separate and independent from the mother, because their opinions were based solely upon the fact that the child had breathed. That court in this regard stated: "The expansion of the lungs was of no great moment because the legal test of live birth--possession by the child of a separate circulation--made irrelevant the question whether the child had breathed or not." The defendant's conviction for murder was reversed because his confession, which as indicated was the only evidence of live birth absent the medical testimony, had not been corroborated.

Two physicians at this trial testified for the People that the male infant had been born alive because there was evidence of breathing. The defendant claimed that this was exactly the type of evidence of live birth ruled insufficient in People v. Hayner, supra. However, because of additional evidence in this case, the motion for a trial order of dismissal was denied.

People v. Hayner, supra, emphasized that some of the factors militating against live birth in that case were the absence of hemorrhage in the lungs and lung area, no hemorrhage in the skull or brain and nothing abnormal in the conjunctiva. Here, in contrast, the People's medical experts testified to hemorrhage in the lungs and lung area, hemorrhage in the skull and brain, hemorrhage in the conjunctiva and bleeding in other parts of the child's body. That opinion characterized the absence of hemorrhage as a strong circumstance on the side of the defendant since bleeding naturally follows the rupture of a blood vessel of a living person. The presence of hemorrhages and bleeding here must then be cogent evidence of live birth. That decision also placed emphasis upon the lack of foreign objects in the infant's body. Again, in contrast, in this case two wads of paper were found in the infant's throat. Thus, the objections accented in that case were dissipated by the additional medical evidence produced here.

There was evidence of breathing based upon the expansion of the child's lungs in this case just as there was in People v. Hayner, supra (see also Lane v. Commonwealth, 219 Va. 509, 248 S.E.2d 781; White v. State, 238 Ga. 224, 232 S.E.2d 57; State v. Collington, 259 S.C. 446, 192 S.E.2d 856; People v. Ryan, 9 Ill.2d 467, 138 N.E.2d 516; People v. Chavez, 77 Cal.App.2d 621, 176 P.2d 92). There were also other indicia of breathing present here. There was medical testimony that the infant's lungs floated (State v. Doyle, 205 Neb. 234, 287 N.W.2d 59; State v. Collington, supra; Logue v. State, 198 Ga. 672, 32 S.E.2d 397; Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014), that there was color in the lungs (Logue v. State, supra; Jackson v. Commonwealth, supra; State v. Sogge, 36 N.D. 262, 161 N.W. 1022) and that the lungs were soft (State v. Collington, supra). Generally, if respiration has been established, that also establishes an independent circulation (People v. Chavez, supra; Morgan v. State, 148 Tenn. 417, 256 S.W. 433), because oxygen breathed through the lungs is carried throughout the body by circulating blood (Homicide of the Newborn--Proof of Live Birth, 65 A.L.R.3d 413, 418).

A case somewhat similar to the instant one is State v. Collington, supra, where a mother's conviction of manslaughter for the death of her newborn infant was affirmed. The doctor and coroner both testified that the child's mouth was stuffed full of paper, either toilet tissue or Kleenex. The pathologist testified the child was born alive and breathed naturally because both lungs were full of air, they were soft and spongy as normal lungs, they floated on water and air was uniformly diffused throughout the lungs. The court found that the testimony that the child breathed in conjunction with the testimony that the baby's mouth was stuffed with paper constituted sufficient proof that the child had been born alive.

The medical testimony in the instant case provided proof of hemorrhage and bleeding not found in Hayner, proof of breathing in excess of that found in Hayner and proof of paper wads in the child's throat unlike the absence of foreign objects found in Hayner. Therefore, there was sufficient evidence to satisfy the test of live birth formulated by the Court of Appeals to justify the denial of the application for a trial order of dismissal.

Resort was again had to People v. Hayner, supra, for the court's charge to the jury on the definition of live birth, because one of the defenses asserted was that the infant had been born dead. 1

The definition of "live birth" is dependent upon the definition of "person." The federal Constitution does not define that word (Roe v. Wade, 410 U.S. 113, 158, 93 S.Ct. 705, 729, 35 L.Ed.2d 147); Section 125.05(1) of the Penal Law does, stating: " 'Person,' when referring to the victim of a homicide, means a human being who has been born and is alive." Civil cases decided subsequent toPeople v. Hayner, supra, are not enlightening. The Court of Appeals in one case held that a child en ventra sa mere is not considered a person until it has seen the light of day (Endresz v. Friedberg, 24 N.Y.2d 478, 485, 301 N.Y.S.2d 65, 248 N.E.2d 901), and in another that a child must be completely born alive before the rules of murder will protect it (Byrn v. N.Y.C. Health and Hosps. Corp., 31 N.Y.2d 194, 203, 335 N.Y.S.2d 390, 286 N.E.2d 887, quotingPaton, Jurisprudence [3d ed.], pp. 353, 354). Since the Legislature is assumed to have known of existing judicial decisions in enacting amendatory legislation (People v. McNair, 78 Misc.2d 341, 356 N.Y.S.2d 205; McKinney's Cons. Laws of N.Y., Book 1, Sec. 191), and since Section 125.05(1) was enacted after People v. Hayner, supra, that case is still the law of this State.

The jury was instructed on this issue as follows: "According to the law, 'person' when referring to the victim of a homicide means a human being who has been born and is alive. According to the law, a child is born alive when it has been wholly expelled from the mother's body and possessed or was capable of an existence by means of a circulation independent of the mother. This means that the child must have a living existence separate and distinct from its mother. The test of separate existence is whether the child is carrying on its being without the help of the mother's circulation."

The first sentence of this definition of live birth was derived from said Section 125.05(1); the last three sentences were almost verbatim quotes from different portions of the decision of People v. Hayner, supra. The People...

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