N.Y. Laws » CHAPTER Penal / PART Specific Offenses / TITLE Offenses Against the Person Involving Physical Injury, Sexual Conduct, Restraint and Intimidation / ARTICLE Homicide and Related Offenses
New York Consolidated Laws

N.Y. Penal Law § 125.25 (2026)

Murder in the second degree

✓ current as of May 2026
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§ 125.25 Murder in the second degree.
  A person is guilty of murder in the second degree when:
  1. With intent to cause the death of another person, he causes the
death of such person or of a third person; except that in any
prosecution under this subdivision, it is an affirmative defense that:
  (a) (i) The defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendant's situation under the circumstances as the
defendant believed them to be. Nothing contained in this paragraph shall
constitute a defense to a prosecution for, or preclude a conviction of,
manslaughter in the first degree or any other crime. (ii) It shall not
be a "reasonable explanation or excuse" pursuant to subparagraph (i) of
this paragraph when the defendant's conduct resulted from the discovery,
knowledge or disclosure of the victim's sexual orientation, sex, gender,
gender identity, gender expression or sex assigned at birth; or
  (b) The defendant's conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.
Nothing contained in this paragraph shall constitute a defense to a
prosecution for, or preclude a conviction of, manslaughter in the second
degree or any other crime; or
  2. Under circumstances evincing a depraved indifference to human life,
he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person; or
  3. Acting either alone or with one or more other persons, he commits
or attempts to commit robbery, burglary, kidnapping, arson, rape in the
first degree, a crime formerly defined in section 130.50 of this title,
the crime of sexual abuse in the first degree, aggravated sexual abuse,
escape in the first degree, or escape in the second degree, and, in the
course of and in furtherance of such crime or of immediate flight
therefrom, he, or another participant, if there be any, causes the death
of a person other than one of the participants; except that in any
prosecution under this subdivision, in which the defendant was not the
only participant in the underlying crime, it is an affirmative defense
that the defendant:
  (a) Did not commit the homicidal act or in any way solicit, request,
command, importune, cause or aid the commission thereof; and
  (b) Was not armed with a deadly weapon, or any instrument, article or
substance readily capable of causing death or serious physical injury
and of a sort not ordinarily carried in public places by law-abiding
persons; and
  (c) Had no reasonable ground to believe that any other participant was
armed with such a weapon, instrument, article or substance; and
  (d) Had no reasonable ground to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury; or
  4. Under circumstances evincing a depraved indifference to human life,
and being eighteen years old or more the defendant recklessly engages in
conduct which creates a grave risk of serious physical injury or death
to another person less than eleven years old and thereby causes the
death of such person; or
  5. Being eighteen years old or more, while in the course of committing
rape in the first, second or third degree, a crime formerly defined in
section 130.50, 130.45 or 130.40 of this title, the crime of sexual
abuse in the first degree, aggravated sexual abuse in the first, second,
third or fourth degree, or incest in the first, second or third degree,
against a person less than fourteen years old, he or she intentionally
causes the death of such person.
  Murder in the second degree is a class A-I felony.
Notes of Decisions
Cited in 3,152 cases (364 in the last 5 years), 1970–2026 · leading case: People v. Sanchez, 777 N.E.2d 204 (N.Y. 2002).
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People v. Sanchez, 777 N.E.2d 204 (N.Y. 2002). · cites it 57× “Defendant was convicted, after a jury trial, of "depraved indifference" murder (Penal Law § 125.25 [2]) for the shooting death of Timothy Range.”
People v. Suarez, 844 N.E.2d 721 (N.Y. 2005). · cites it 22× “The Statutory Categories of Homicide With the adoption of the revised Penal Law in 1965, the Legislature codified five basic categories of homicide, which have remained essentially unchanged since that time: intentional murder in the second degree (Penal Law § 125.25 [1]), [1]…”
People v. Cahill, 809 N.E.2d 561 (N.Y. 2003). · cites it 18× “But the very same mens rea—the intent to kill—also defines intentional murder (Penal Law § 125.25). Thus, the prosecution employs the identical mens rea both to define burglary and to elevate defendant's intentional murder to murder in the first degree.”
People v. Mills, 804 N.E.2d 392 (N.Y. 2003). · cites it 12× “Defendant Arthur Mills was indicted in March 2000 for murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) in connection with his role in the 1978 drowning death of 12-year-old Raymond Umber.”
Angel Sellan v. Robert Kuhlman, 261 F.3d 303 (2d Cir. 2001). · cites it 6× “d Degree (so-called “depraved mind” murder), Manslaughter in the Fir£t Degree (a lesser included offense of second degree intentional murder, which requires intent to cause serious physical injury resulting in death), two counts of Assault in the First Degree, Reckless…”
People v. Hafeez, 792 N.E.2d 1060 (N.Y. 2003). · cites it 8× “A grand jury indicted defendant and codefendant on two counts of second degree murder, charging both intentional murder (Penal Law § 125.25 [1]) and depraved indifference murder (Penal Law § 125.”
People v. Baker, 926 N.E.2d 240 (N.Y. 2010). · cites it 5× “A grand jury indicted defendant for depraved indifference murder of a child (Penal Law § 125.25 [4]), manslaughter in the first and second degrees (Penal Law § 125.”
People v. Heslop, 48 A.D.3d 190 (N.Y. App. Div. 2007). · cites it 16× “Defendant was charged with depraved indifference murder (see Penal Law § 125.25 [4]), stemming from the death of his four-month-old son.”
People v. Miller, 845 N.E.2d 451 (N.Y. 2006). · cites it 7× “27 (1) (a) (vii) (intentional felony murder) and two counts of second degree murder under Penal Law § 125.25 (1) and (3) (intentional murder and felony murder, respectively), as well as first degree burglary, criminal possession of a weapon in the fourth degree and criminal…”
David Sweet v. Floyd Bennett, Superintendent of Elmira Corr. Inst., 353 F.3d 135 (2d Cir. 2003). · cites it 6× “Sweet’s petition was based, among other things, on a claim that he received ineffective assistance of counsel because his trial counsel failed to object when: (1) the trial court’s instructions to the jury charged Sweet with second degree murder, N.Y. Penal Law § 125.25 [4], and…”
People v. Mateo, 811 N.E.2d 1053 (N.Y. 2004). · cites it 2× “The Weight of the Evidence of First Degree Felony Murder Defendant claims that his conviction for first degree felony murder based on either the shooter or the commander theory was against the weight of the evidence because the evidence proved, at most, that he was an ordinary…”
The People v. Matthew A. Davis, 66 N.E.3d 1076 (N.Y. 2016). · cites it 6× “169 Defendant was indicted for two counts of murder in the second degree (felony murder) (Penal Law § 125.25 [3]), and one count each of burglary in the first degree (Penal Law § 140.”
Show all 3,152 citing cases →
N.Y. Penal Law § 125.25(1): 53 cases
Hoffler v. Bezio, 831 F. Supp. 2d 570 (N.D.N.Y. 2011).
Patsy Kelly Jarrett v. Frank R. Headley, Superintendent of Bedford Hills Corr. Facility, 802 F.2d 34 (2d Cir. 1986).
Paul Cox v. David H. Miller, Superintendent, E. Corr. Facility, 296 F.3d 89 (2d Cir. 2002).
People v. Brown, 2020 NY Slip Op 1632 (N.Y. App. Div. 2020).
Eugene Anderson v. Harold J. Smith, Superintendent of Attica Corr. Facility, 751 F.2d 96 (2d Cir. 1984).
N.Y. Penal Law § 125.25(2): 19 cases
Rustici v. Philips, 497 F. Supp. 2d 452 (E.D.N.Y 2007).
Gutierrez v. Smith, 702 F.3d 103 (2d Cir. 2012).
David Policano v. Victor T. Herbert, 453 F.3d 79 (2d Cir. 2006).
Mannix v. Phillips, 619 F.3d 187 (2d Cir. 2010).
People v. Illis, 2020 NY Slip Op 3535 (N.Y. App. Div. 2020).
N.Y. Penal Law § 125.25(3): 22 cases
Eugene Anderson v. Harold J. Smith, Superintendent of Attica Corr. Facility, 751 F.2d 96 (2d Cir. 1984).
Domingo Casillas v. Charles Scully, Superintendent, Green Haven Corr. Facility, Stormville, New York, 769 F.2d 60 (2d Cir. 1985).
Cappiello v. Hoke, 698 F. Supp. 1042 (E.D.N.Y 1988).
Alexander v. Keane, 991 F. Supp. 329 (S.D.N.Y. 1998).
Klosin v. Conway, 501 F. Supp. 2d 429 (W.D.N.Y. 2007).
N.Y. Penal Law § 125.25(4): 4 cases
Rustici v. Philips, 497 F. Supp. 2d 452 (E.D.N.Y 2007).
Congelosi v. Miller, 611 F. Supp. 2d 274 (W.D.N.Y. 2009).
People v. Smith, 2024 NY Slip Op 00280 (N.Y. App. Div. 2024).
People v. Smith, 2024 NY Slip Op 00280 (N.Y. App. Div. 2024).
N.Y. Penal Law § 125.25(8): 1 case
Nathan Sams v. Hans Walker, Superintendent, Auburn Corr. Facility, 18 F.3d 167 (2d Cir. 1994).
N.Y. Penal Law § 125.25(l)(a): 1 case
Fagan v. Kuhlman, 267 F. Supp. 2d 388 (E.D.N.Y 2003).
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