gross deviation standard in New York

2024"The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]), and the defendant must "engage in some blameworthy conduct contributing to that risk" ( People v Asaro , 21 NY3d 677, 684 [2013]; see People v Li , 34 NY3d 357 , 364 [2019]; People v Boutin , 75 NY2d 692, 696 [1990]).

2022"That 'risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation'" ( People v Gerbino , 161 AD3d 1220 , 1222 [2018], quoting Penal Law § 15.05 [4]). "[C]riminal liability cannot be predicated on every act of carelessness resulting in death[;] . . . the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that . . . carelessness must be such that its seriousness would be apparent to anyone who shares the co

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2020The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." With respect to the crimes at issue, "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person" (§ 125.10) and, as relevant here, a person is guilty of assault in the third degree when "[w]ith criminal negligence, he [or she] causes physical injury to another person by means of . . . a dangerous instrument," i.e., a vehicle (§ 120.00

2011A person is said to act with the culpable mental state of criminal negligence — as to a result — when he or she “fails to perceive a substantial and unjustifiable risk that such result will occur . . . [and] [t]he risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05 [4]; see People v Cabrera, 10 NY3d 370, 375-376 [2008]).

2024"The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]), and the defendant must "engage in some blameworthy conduct contributing to that risk" ( People v Asaro , 21 NY3d 677, 684 [2013]; see People v Li , 34 NY3d 357 , 364 [2019]; People v Boutin , 75 NY2d 692, 696 [1990]).

2015For purposes of this statute, a person acts “recklessly” when, among other things, he or she “is aware of and consciously disregards a substantial and unjustifiable risk” that death or injury will occur (Penal Law § 15.05 [3]; see People v Asaro, 21 NY3d 677, 684 [2013]). 8 That risk, in turn, “must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]), i.e., the risk must reflect “the kind of seriously blameworthy carelessness whose seriousness would be app

2018That "risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation" (Penal Law § 15.05 [4]). "[C]riminal liability cannot be predicated on every act of carelessness resulting in death[;] the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence" and "must be such that its seriousness would be apparent to anyone who shares the community's general sense of right and wrong" ( People v Boutin , 75 NY2d 692, 695-696 [

2014“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists[;] [t]he risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (§ 15.05 [4]). “ ‘[T]he carelessness required for criminal negligence . . . must be such that its seriousness would be apparent to anyone who shares the c

2018The evidence adduced at trial was also factually sufficient to show that the defendant consciously disregarded that "substantial and unjustifiable" risk by handling the gun in such a manner so as to cause it to discharge and strike the victim ( see People v Licitra, 47 NY2d 554, 559 ["Although the discharge of the weapon may well have been unintentional, the jury was entitled to consider whether the risk created by defendant's actions was substantial, unjustifiable and constituted a gross deviation from the standard of conduct that a reasonable person would have observed"]; Matter of Koron B.,

2011The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Thus, the elements of second-degree manslaughter are "the creation of a substantial and unjustifiable risk [of death]; an awareness and disregard of the risk on the part of defendant; and a resulting death" ( People v Licitra, 47 NY2d 554, 558 [1979]).

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2011The jury was instructed in light of then-applicable law pursuant to People v Register ( 60 NY2d 270 [1983]) that the People were required to prove (1) that defendant shot a pistol at the victim thereby creating a grave risk of death to another person; (2) that defendant was aware of this substantial and unjustifiable risk; (3) that defendant consciously disregarded the risk that death would result; (4) that defendant’s conscious disregard of this risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; and (5) that the circumstanc

2010The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” The determination whether reckless endangerment has been proven by legally sufficient evidence requires “an objective assessment of the degree of risk presented by [the appellant’s] reckless conduct” (People v Register, 60 NY2d 270, 277 [1983], cert denied 466 US 953 [1984]; see People v Davis, 72 NY2d 32, 36 [1988]).

2019A person acts recklessly where he or she "is aware of and consciously disregards a substantial and unjustifiable risk" of his or her conduct, and where disregard of such a risk "constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]; see People v Feingold , 7 NY3d 288, 296 [2006]; People v Mitchell , 94 AD3d 1252, 1254 [2012], lv denied 19 NY3d 964 [2012]).

2017While the officer closest to defendant and the K-9 dog testified that he believed that the gunshots were intended for the K-9 dog, the mens rea element of reckless endangerment in the first degree does not require proof that a defendant intended to shoot at another person; it requires proof that, with “ ‘utter disregard for the value of human life’ ” (People v Feingold, 7 NY3d 288 , 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]), he or she was “aware of and consciously disregard [ed] a substantial and unjustifiable risk that [a] result w[ould] occur or that [a particular] circums

2011Although we have reduced defendant’s conviction to third-degree assault on legal sufficiency grounds, defendant is entitled to a weight of the evidence review by the Appellate Division (see People v Bleakley, 69 NY2d 490, 496 [1987]).

2003Viewing the evidence in a neutral light, we find that while a different finding would not have been unreasonable, the weight of the credible evidence supported the jury’s conclusion that when defendant fanned the flames on the fire she had intentionally set and then left the building, she was “aware of and consciously disregard[ed] a substantial and .unjustifiable risk” (Penal Law § 15.05 [3]) that her conduct would cause such damage to nearby property, and that this disregard “constituí [ed] a gross deviation from the standard of conduct that a reasonable person would observe in the situation

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2020The evidence submitted by the People is insufficient to establish that defendant acted recklessly, "i.e., that [s]he perceived a substantial and unjustifiable risk of [injury] and that [her] conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation" ( People v Roth , 256 AD2d 1206, 1207 [4th Dept 1998]; see Penal Law § 15.05 [3]; cf. People v Crosby , 151 AD3d 1184, 1187-1188 [3d Dept 2017]; People v Miller , 286 AD2d 981, 981 [4th Dept 2001], lv denied 97 NY2d 657 [2001]).

2018The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]; see People v Jorgensen , 26 NY3d 85, 90 [2015]; People v Lavalley , 158 AD3d 993 , 994 [2018]; People v Crosby , 151 AD3d 1184, 1186 [2017]).

2019Given defendant's knowledge of the potency of the drugs that he was distributing and their potential lethality, it is evident that the nature of the risk involved was of such degree "that defendant's failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation" and that his actions were a sufficiently direct cause of the victim's death for him to face the judgment of a jury ( People v Galle , 77 NY2d at 955-956 [internal quotation marks, brackets and citations omitted]; see People v Cruciani , 36 NY2d 304, 305-306 [1975]

1991Viewing the evidence, as we must, in a light most favorable to the prosecution, we conclude that the jury could have rationally found that defendant, by intravenously administering cocaine to the decedent when he knew that she intended to continue taking injections of that drug throughout the night, had created "a substantial and unjustifi able risk” that his actions would contribute to her death, and that this "risk [was] of such nature and degree that [defendant’s] failure to perceive it constitute^] a gross deviation from the standard of care that a reasonable person would observe in the si

2010The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” The determination whether reckless endangerment has been proven by legally sufficient evidence requires “an objective assessment of the degree of risk presented by [the appellant’s] reckless conduct” (People v Register, 60 NY2d 270, 277 [1983], cert denied 466 US 953 [1984]; see People v Davis, 72 NY2d 32, 36 [1988]).

2010The conduct must actually create a substantial risk of serious physical injury, and a defendant’s “subjective intent is irrelevant” (People v Davis, 72 NY2d at 36 ; see Matter of Kysean D.S., 285 AD2d 994, 995 [2001]).

2019"Depraved indifference is, simply put, 'an utter disregard for the value of human life'" ( People v Stahli , 159 AD3d at 1057, quoting People v Suarez , 6 NY3d 202 , 214 [2005]; see People v Warrington , 146 AD3d 1233 , 1237 [2017], lv denied 29 NY3d 1038 [2017]), and a person is said to act recklessly "when he [or she] is aware of and consciously disregards a substantial and unjustifiable risk that" a specified result will occur, where that risk is "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observ

2017While the officer closest to defendant and the K-9 dog testified that he believed that the gunshots were intended for the K-9 dog, the mens rea element of reckless endangerment in the first degree does not require proof that a defendant intended to shoot at another person; it requires proof that, with “ ‘utter disregard for the value of human life’ ” (People v Feingold, 7 NY3d 288 , 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]), he or she was “aware of and consciously disregard [ed] a substantial and unjustifiable risk that [a] result w[ould] occur or that [a particular] circums

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2023Criminally culpable risk-creating conduct constituting "a gross deviation from the standard of care that a reasonable person would [have] observe[d]" (Penal Law § 15.05 [4]), includes speeding through a traffic control device without braking or blowing the horn ( see People v Haney , 30 NY2d 328, 335-336 [1972]; People v Mitchell , 213 AD2d 562, 562-563 [2d Dept 1995], lv denied 86 NY2d 845 [1995]); driving at an excessive rate of speed, e.g., 90 miles per hour in a 50 mile-per-hour zone ( see People v Paul V.S. , 75 NY2d 944, 944-945 [1990]; but see People v Perry , 123 AD2d 492 , 492-493 [4t

2018Co. v Zuk , 78 NY2d 41, 46 [1991]; see Penal Law § 15.05 [3]; People v Jorgensen , 26 NY3d 85, 90 [2015]; People v Montanez , 41 NY2d 53 , 56 [1976]).

2010Co. v Zuk, 78 NY2d 41, 46 [1991]; see Penal Law § 15.05 [3]).

2010The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” The determination whether reckless endangerment has been proven by legally sufficient evidence requires “an objective assessment of the degree of risk presented by [the appellant’s] reckless conduct” (People v Register, 60 NY2d 270, 277 [1983], cert denied 466 US 953 [1984]; see People v Davis, 72 NY2d 32, 36 [1988]).

2005To constitute “depraved indifference,” conduct must be “ ‘so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another’ (People v Fenner, 61 NY2d 971, 973 ; see also People v Register, 60 NY2d 270 , cert denied 466 US 953 )” (People v Russell, 91 NY2d 280, 287-288 [1998]).

2024As the proof also made clear that such disregard was a gross deviation from the standard of conduct of reasonable persons in defendant's situation, the People proffered legally sufficient evidence to establish the required mental state for second degree manslaughter ( see People v Phippen , 232 AD2d 790, 790-791 [3d Dept 1996]; cf. People v Congregational Khal Chaisidei Skwere , 232 AD2d 919, 921 [3d Dept 1996], lv denied 89 NY2d 984 [1997]).

2019Thus, to establish that a defendant is guilty of manslaughter in the second degree, the People must prove "the creation of a substantial and unjustifiable risk; an awareness and disregard of the risk on the part of [the] defendant; and a resulting death" ( People v Licitra , 47 NY2d 554, 558 [1979]; accord People v Raymond , 56 AD3d 1306 , 1307 [2008], lv denied 12 NY3d 820 [2009]; People v Phippen , 232 AD2d 790, 790 [1996]).

2016Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to support the defendant’s convictions of criminally negligent homicide and assault in the third degree, for failing to perceive a substantial and unjustifiable risk that death and physical injury would occur as a result of his operation of the vehicle he was driving, which failure was a gross deviation from the standard of care that a reasonable person would observe in the situation (see Penal Law §§ 125.10, 120.00 [3]; 15.05 [4]; People v Paul

2007Here, essentially, the facts are not in dispute, the underlying event occurred just as the proof in the criminal trial established, and the reversal of the conviction was based on the Fourth Department’s finding (People v Simmons, 31 AD3d 1143, 1144 [2006]) that: “The evidence presented at trial, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]) ... is legally insufficient to establish that defendant’s acts were ‘a gross deviation from the standard of care that a reasonable person would observe’ under the circumstances. ‘[U]nless a defendant has en

1986Viewing the evidence in the light most favorable to the People, the evidence was legally sufficient to sustain the conclusion that the defendant’s failure to perceive that his actions created a substantial and unjustifiable risk of death was a gross deviation from the standard of care that a reasonable person would have observed (see, Penal Law § 15.05 [4]; § 125.10), and that such actions constituted " 'a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law’ ” (People v Kibbe, 35 NY2d 407, 412 ).

1982Criminal, as opposed to civil, negligence requires proof that the risk was “substantial and unjustifiable * * * [and] of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law, § 15.05, subd 4; People v Kibbe, 35 NY2d 407, 412 ; see LaFave and Scott, Criminal Law [1972 ed], § 30, p 211).

1992In our view, the evidence was adequate to enable the jury "to determine that [defendant] failed to 'perceive a substantial risk and that such failure constituted a gross deviation from the standard of care that a reasonable person would observe in the situation’ ” (People v Moore, 155 AD2d 725, 726 , lv denied 75 NY2d 773 , quoting People v Hess, 140 AD2d 895, 896 , lv denied 72 NY2d 957 ).

1989To convict defendant of criminally negligent homicide, the jury was required to determine that he failed to "perceive a substantial risk and that such failure constituted a gross deviation from the standard of care that a reasonable person would observe in the situation” (People v Hess, 140 AD2d 895, 896 , lv denied 72 NY2d 957 ).

2025In the context of both charges, a person acts with the requisite recklessness when "he or she [is] 'aware of and consciously disregard[s] a substantial and unjustifiable' " grave risk of death to another person and "that the disregard of this risk 'constitute[s] a gross deviation from the standard of conduct that a reasonable person would have observed in the situation' " ( People v Durham , 146 AD3d 1070, 1074 [3d Dept 2017] [brackets omitted], lv denied 29 NY3d 997 [2017], quoting Penal Law § 15.05 [3]).

2025In the context of both charges, a person acts with the requisite recklessness when "he or she [is] 'aware of and consciously disregard[s] a substantial and unjustifiable' " grave risk of death to another person and "that the disregard of this risk 'constitute[s] a gross deviation from the standard of conduct that a reasonable person would have observed in the situation' " ( People v Durham , 146 AD3d 1070, 1074 [3d Dept 2017] [brackets omitted], lv denied 29 NY3d 997 [2017], quoting Penal Law § 15.05 [3]).

2025As to recklessness, a person acts with the culpable state of mind "when he or she is aware of and consciously disregards a substantial and unjustifiable grave risk of death to another person and that the disregard of this risk constitutes a gross deviation from the standard of conduct that a reasonable person would have observed in the situation" ( People v Dorvil , 234 AD3d 1106 , 1108 [3d Dept 2025] [internal quotation marks, brackets and citations omitted], lv denied 44 NY3d 982 [2025]; see People v Barboni , 21 NY3d at 400 ).

2025As to recklessness, a person acts with the culpable state of mind "when he or she is aware of and consciously disregards a substantial and unjustifiable grave risk of death to another person and that the disregard of this risk constitutes a gross deviation from the standard of conduct that a reasonable person would have observed in the situation" ( People v Dorvil , 234 AD3d 1106, 1108 [3d Dept 2025] [internal quotation marks, brackets and citations omitted], lv denied 44 NY3d 982 [2025]; see People v Barboni , 21 NY3d at 400).