CJI2d[NY] Penal Law art 125, Depraved Indifference Murder and

The trial court may be well advised to give the following instruction immediately after defining the crimes of depraved indifference murder and reckless manslaughter.

Now, I will explain the difference between Murder in the Second Degree and Manslaughter in the Second Degree.

Both crimes require that the defendant cause the death of another. Both crimes require that the defendant do so recklessly.

Murder, however, requires a greater degree of recklessness than Manslaughter, and Murder has an additional element of “depraved indifference to human life,” not required for manslaughter.

I will briefly explain the different levels of recklessness:

Manslaughter requires that the defendant engage in conduct which creates or contributes to a substantialand unjustifiable risk that another person's death will occur.

Murder in the second degree requires that the defendant engage in conduct which creates a grave and unjustifiable risk that another person's death will occur.

Thus, Manslaughter speaks of a substantial risk of death, and Murder speaks of a grave risk of death. Murder, therefore, requires a heightened degree of recklessness.

Both definitions of ?reckless” go on to require that the defendant be aware of and consciously disregard the risk, and that the risk be of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

Finally, Murder, but not Manslaughter, requires that, in addition to acting recklessly, the defendant act with a depraved indifference to human life, as I have explained that concept to you.