section 125.20(4) first degree in New York

2026We note, however, that the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was convicted of manslaughter in the first degree under Penal Law § 125.20 without specifying a subsection, and they must therefore be amended to reflect that he was convicted under section 125.20 (1) ( see People v Martinez , 37 AD3d 1099, 1100 [4th Dept 2007], lv denied 8 NY3d 947 [2007]; see generally People v Osorio , 179 AD3d 1512, 1514 [4th Dept 2020], lv denied 35 NY3d 972 [2020]).

2026We note, however, that the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was convicted of manslaughter in the first degree under Penal Law § 125.20 without specifying a subsection, and they must therefore be amended to reflect that he was convicted under section 125.20 (1) ( see People v Martinez , 37 AD3d 1099 , 1100 [4th Dept 2007], lv denied 8 NY3d 947 [2007]; see generally People v Osorio , 179 AD3d 1512, 1514 [4th Dept 2020], lv denied 35 NY3d 972 [2020]).

2026We note, however, that the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was convicted of manslaughter in the first degree under Penal Law § 125.20 without specifying a subsection, and they must therefore be amended to reflect that he was convicted under section 125.20 (1) ( see People v Martinez , 37 AD3d 1099, 1100 [4th Dept 2007], lv denied 8 NY3d 947 [2007]; see generally People v Osorio , 179 AD3d 1512, 1514 [4th Dept 2020], lv denied 35 NY3d 972 [2020]).

2026We note, however, that the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was convicted of manslaughter in the first degree under Penal Law § 125.20 without specifying a subsection, and they must therefore be amended to reflect that he was convicted under section 125.20 (1) ( see People v Martinez , 37 AD3d 1099 , 1100 [4th Dept 2007], lv denied 8 NY3d 947 [2007]; see generally People v Osorio , 179 AD3d 1512, 1514 [4th Dept 2020], lv denied 35 NY3d 972 [2020]).

2018Finally, inasmuch as both murder in the second degree under Penal Law § 125.25 (1) and manslaughter in the first degree under section 125.20 (1) require either an intent to cause death or an intent to cause serious physical injury and the defense submitted evidence that defendant did not act with such intent, the failure to charge manslaughter in the second degree and criminally negligent homicide, which require lesser culpable mental states, cannot be deemed harmless because "the jury was not given a charge for an offense which would permit it to determine that the defendant [acted with a les

2015However, since it is theoretically possible to commit the crime of manslaughter in the first degree pursuant to Penal Law § 125.20 (4) without also committing the crime of manslaughter in the second degree (see People v James, 70 AD3d 1052 [2010]; People v Mora, 57 AD3d 571 [2008]; People v Heslop, 48 AD3d 190, 195 [2007]; People v Robinson, 278 AD2d 798 [2000]), the Supreme Court properly denied the request (see CPL 1.20 [37]; People v Glover, 57 NY2d 61, 64 [1982]).

2015However, since it is theoretically possible to commit the crime of manslaughter in the first degree pursuant to Penal Law § 125.20 (4) without also committing the crime of manslaughter in the second degree (see People v James, 70 AD3d 1052 [2010]; People v Mora, 57 AD3d 571 [2008]; People v Heslop, 48 AD3d 190, 195 [2007]; People v Robinson, 278 AD2d 798 [2000]), the Supreme Court properly denied the request (see CPL 1.20 [37]; People v Glover, 57 NY2d 61, 64 [1982]).

2012Here, defendant’s statements that he was “in a psychotic state” and “hearing voices” on the day of the crime signaled that he may have been suffering from a mental disease or defect at that time and, consequently, was unable to form the intent necessary to commit first-degree manslaughter under Penal Law § 125.20 (2) (see Penal Law § 40.15; People v Almonor, 93 NY2d 571, 580 [1999] [the affirmative defense of insanity “contemplates that as a result of mental disease or defect, the defendant lacks substantial capacity to know or appreciate either the nature and consequences of such conduct or t

2009To establish that defense, “a defendant must demonstrate, first, that he or she acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance” (People v Roche, 98 NY2d 70, 75-76 [2002]; see People v Harris, 95 NY2d 316, 319 [2000]; People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]).

2009To establish that defense, “a defendant must demonstrate, first, that he or she acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance” (People v Roche, 98 NY2d 70, 75-76 [2002]; see People v Harris, 95 NY2d 316, 319 [2000]; People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]).

2009Accordingly, the judgment is reversed, on the law, count one of the indictment charging depraved indifference murder under Penal Law § 125.25 (4) is dismissed with leave to the People to re-present any appropriate charges to another grand jury (see People v Gonzalez, 61 NY2d at 635 ; People v Lauderdale, 295 AD2d at 540 ; People v Robinson, 145 AD2d 184, 185-186 [1989], affd 75 NY2d 879 [1990]), and a new trial is ordered with respect to count two of the indictment charging manslaughter in the first degree under Penal Law § 125.20 (4).

2009We note that in the event the defendant is retried on charges of criminally negligent homicide and manslaughter in the first degree under Penal Law § 125.20 (4), those crimes should not be submitted to the jury in the conjunctive, as they were here, but rather, in the alternative, so as to preclude the possibility of an inconsistent verdict (see CPL 300.30 [5]; 300.40 [5]; Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008]; People v Johnson, 87 NY2d 357, 359-360 [1996]; People v Gallagher, 69 NY2d at 529-530 ; People v Smith, 30 AD3d at 693 ; People v Robinson, 145 AD2d at 185-186 ).

2009We note that in the event the defendant is retried on charges of criminally negligent homicide and manslaughter in the first degree under Penal Law § 125.20 (4), those crimes should not be submitted to the jury in the conjunctive, as they were here, but rather, in the alternative, so as to preclude the possibility of an inconsistent verdict (see CPL 300.30 [5]; 300.40 [5]; Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008]; People v Johnson, 87 NY2d 357, 359-360 [1996]; People v Gallagher, 69 NY2d at 529-530 ; People v Smith, 30 AD3d at 693 ; People v Robinson, 145 AD2d at 185-186 ).

2009We note that in the event the defendant is retried on charges of criminally negligent homicide and manslaughter in the first degree under Penal Law § 125.20 (4), those crimes should not be submitted to the jury in the conjunctive, as they were here, but rather, in the alternative, so as to preclude the possibility of an inconsistent verdict (see CPL 300.30 [5]; 300.40 [5]; Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008]; People v Johnson, 87 NY2d 357, 359-360 [1996]; People v Gallagher, 69 NY2d at 529-530 ; People v Smith, 30 AD3d at 693 ; People v Robinson, 145 AD2d at 185-186 ).

2009We note that in the event the defendant is retried on charges of criminally negligent homicide and manslaughter in the first degree under Penal Law § 125.20 (4), those crimes should not be submitted to the jury in the conjunctive, as they were here, but rather, in the alternative, so as to preclude the possibility of an inconsistent verdict (see CPL 300.30 [5]; 300.40 [5]; Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008]; People v Johnson, 87 NY2d 357, 359-360 [1996]; People v Gallagher, 69 NY2d at 529-530 ; People v Smith, 30 AD3d at 693 ; People v Robinson, 145 AD2d at 185-186 ).

2009We note that in the event the defendant is retried on charges of criminally negligent homicide and manslaughter in the first degree under Penal Law § 125.20 (4), those crimes should not be submitted to the jury in the conjunctive, as they were here, but rather, in the alternative, so as to preclude the possibility of an inconsistent verdict (see CPL 300.30 [5]; 300.40 [5]; Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008]; People v Johnson, 87 NY2d 357, 359-360 [1996]; People v Gallagher, 69 NY2d at 529-530 ; People v Smith, 30 AD3d at 693 ; People v Robinson, 145 AD2d at 185-186 ).

2009Hence, the jury necessarily found that the defendant, with recklessness (see Penal Law § 15.05 [3]), caused the death of her baby (see Penal Law § 125.20 [4]; People v Baker, 58 AD3d 1069, 1070 [2009], lv granted 12 NY3d 851 [2009] [characterizing the elements of the crime of manslaughter in the first degree under Penal Law § 125.20 (4) as, inter alia, “recklessly causing a child’s death”]).

2009To establish that defense, “a defendant must demonstrate, first, that he or she acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance” (People v Roche, 98 NY2d 70, 75-76 [2002]; see People v Harris, 95 NY2d 316, 319 [2000]; People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]).

2009Ordered that the judgment is reversed, on the law, count one óf the indictment charging depraved indifference murder under Eenal Law § 125.25 (4) is dismissed with leave to the Feople to re-present any appropriate charges to another grand jury (see People v Beslanovics, 57 NY2d 726, 727 [1982]), and a new trial is ordered with respect to count two of the indictment charging manslaughter in the first degree under Penal Law § 125.20 (4).

2009We note that in the event the defendant is retried on charges of criminally negligent homicide and manslaughter in the first degree under Penal Law § 125.20 (4), those crimes should not be submitted to the jury in the conjunctive, as they were here, but rather, in the alternative, so as to preclude the possibility of an inconsistent verdict (see CPL 300.30 [5]; 300.40 [5]; Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008]; People v Johnson, 87 NY2d 357, 359-360 [1996]; People v Gallagher, 69 NY2d at 529-530 ; People v Smith, 30 AD3d at 693 ; People v Robinson, 145 AD2d at 185-186 ).

2009Thus, for example, if two counts are predicated on a particular act or omission of a defendant, and are further predicated on the defendant’s act or omission resulting in another person’s death, convictions on those counts would be inconsistent if one count alleged that the defendant intentionally caused the person’s death and the other count alleged that the defendant recklessly caused the person’s death (see People v Gallagher, 69 NY2d 525, 529-530 [1987]).

2002The People submitted fingerprint comparison evidence and testimony proving that it was defendant who was convicted in South Carolina in 1980 under an alias and that the out-of-state judgment of conviction has a New York equivalent (see Penal Law § 70.04 [1] [b] [i]; see also People v Gonzalez, 61 NY2d 586 ; People ex rel.

1998Because defendant failed to object to both charges being considered by the court in the conjunctive and did not move to set aside or modify the verdict pursuant to CPL 330.30, her contention has not been preserved for our review (see, CPL 470.05 [2]; People v Alfaro, 66 NY2d 985, 987 ; see also, People v Sweet, 234 AD2d 957 , lv denied 89 NY2d 1101 ).