OPINION OF THE COURT
Sullivan, J.
While we are in agreement with the dissent that, in accordance with People v Page (72 NY2d 69), the trial court’s premature discharge of a sitting juror warrants reversal and a new trial on the charge of criminal possession of a weapon in the third degree, we find, on our review of the record and on the authority of People v Montanez (41 NY2d 53), that the evidence in support of defendant’s conviction of criminally negligent homicide was legally insufficient and dismiss that charge.
Defendant’s conviction arises out of the shooting death of his close friend, Calvin Johnson, 18 years of age, on June 14, 1990, after an evening of drinking on the stoop in front of the apartment building at 2352 Walton Avenue, where Calvin lived. Other than defendant, there were no eyewitnesses to the event. According to defendant, who testified at trial, Calvin, who had a gun in his waistband, had been pulling the gun out [3] and fooling around with it as the evening wore on. At one point, Calvin went upstairs to his apartment, returning a short time later with the gun still in his waistband. Calvin began to pull the gun out again and defendant repeated earlier warnings he had given to Calvin to stop playing with it. When defendant reached over to take the gun away it discharged, mortally wounding Calvin.
Defendant then grabbed the gun and ran upstairs to Calvin’s apartment. Calvin’s sister and a boyfriend, William Owes, described defendant as frantic and panicky as he entered the apartment. Defendant repeatedly stated that he had mistakenly or accidentally shot Calvin. When told to get the gun out of the apartment, defendant threw it out a window. He ran downstairs and around the corner and called an ambulance. After returning to the stoop, he observed two police officers at the corner on motor patrol. Defendant ran over and summoned them to the scene. When questioned by the officers, defendant denied witnessing the shooting, a denial which he was to repeat twice more to detectives at the scene and later at the precinct.
The statutory definition of criminally negligent homicide involves an interplay of two provisions. Penal Law § 125.10 provides, "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” Penal Law § 15.05 (4) provides that "[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. The 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.” As the Court of Appeals has made clear, however, "the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong [citations omitted].” (People v Boutin, 75 NY2d 692, 695-696.) "[C]riminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been 'substantial and unjustifiable’, and the failure to perceive that risk must have been a 'gross deviation’ from reasonable care.” (Supra, at 696.)
[4] People v Montanez (41 NY2d 53, supra) involved a prosecution for the shooting death by the defendant of an old friend. The two were alone for an hour and one half in the kitchen of the deceased’s home, conversing, according to prosecution witnesses, about a drug debt, when others, who were having drinks in the living room, heard a loud popping sound emanating from the kitchen. There was testimony that the deceased, bloodied, staggered into the living room, asking, " '[w]hat did you shoot me with?’ ”, to which the defendant responded, " 'I was just showing it to him’ ” or " T’m sorry. I just wanted to show it to him.’ ” (Supra, at 55.) The defendant dropped to his knees and began crying and hugging the deceased. A witness testified that he saw in defendant’s hand a small revolver, which he placed in his pocket before leaving the house. The gun was never recovered. The defendant testified that, after a friendly conversation unrelated to drugs, as he turned to put on his jacket to leave, the deceased told the defendant that he had " 'a nice piece to show you’ ”. (Supra, at 56.) The defendant turned, saw the gun, which, as he took it, went off. The defendant conceded that at the time the shot was fired the gun might have been in his hand and that he probably carried it into the living room where he placed it beside the body. He denied bringing the gun to the house and insisted that it belonged to the deceased.
The Court of Appeals found the evidence insufficient to sustain the conviction of manslaughter in the second degree or any lesser included offense, which would include, of course, criminally negligent homicide. Noting the possibility that a disagreement might have led to a heated argument, prompting the defendant to seize the weapon in order to threaten the deceased, the Court found that it was equally possible that the production of the gun was unrelated to any disagreement, "perhaps displayed in friendship and carelessly discharged as a result of ordinary negligence.” (Supra, at 57.) Most significantly though, the Court found that "even assuming that the weapon was in the defendant’s hand at the time of the shooting, neither this circumstance nor any other factors in the case compels the inference that the manner in which the defendant handled the weapon, if negligent, rose to the level of a criminal act [citation omitted].” (Supra, at 57-58.)
Here, as in Montanez (supra), defendant and the deceased were alone at the time of the shooting and defendant is the only witness to the event. Similarly, as in Montanez, defendant testified that the gun was in the deceased’s possession [5] before discharge and that the gun discharged when he, the defendant, reached over to take it from the deceased. Also, like Montanez, the People’s witnesses saw defendant with the gun only after the shooting. Indeed, defendant’s testimony that the deceased was the one in possession of the gun before the shooting went unrebutted. William Owes, a prosecution witness, unequivocally testified that he did not see either defendant or the deceased with a gun during the 45 minutes that he was with them immediately prior to the shooting. The discovery of a .357 round in the deceased’s pocket only served to corroborate defendant’s testimony on this point.
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OPINION OF THE COURT
Sullivan, J.
While we are in agreement with the dissent that, in accordance with People v Page (72 NY2d 69), the trial court’s premature discharge of a sitting juror warrants reversal and a new trial on the charge of criminal possession of a weapon in the third degree, we find, on our review of the record and on the authority of People v Montanez (41 NY2d 53), that the evidence in support of defendant’s conviction of criminally negligent homicide was legally insufficient and dismiss that charge.
Defendant’s conviction arises out of the shooting death of his close friend, Calvin Johnson, 18 years of age, on June 14, 1990, after an evening of drinking on the stoop in front of the apartment building at 2352 Walton Avenue, where Calvin lived. Other than defendant, there were no eyewitnesses to the event. According to defendant, who testified at trial, Calvin, who had a gun in his waistband, had been pulling the gun out [3] and fooling around with it as the evening wore on. At one point, Calvin went upstairs to his apartment, returning a short time later with the gun still in his waistband. Calvin began to pull the gun out again and defendant repeated earlier warnings he had given to Calvin to stop playing with it. When defendant reached over to take the gun away it discharged, mortally wounding Calvin.
Defendant then grabbed the gun and ran upstairs to Calvin’s apartment. Calvin’s sister and a boyfriend, William Owes, described defendant as frantic and panicky as he entered the apartment. Defendant repeatedly stated that he had mistakenly or accidentally shot Calvin. When told to get the gun out of the apartment, defendant threw it out a window. He ran downstairs and around the corner and called an ambulance. After returning to the stoop, he observed two police officers at the corner on motor patrol. Defendant ran over and summoned them to the scene. When questioned by the officers, defendant denied witnessing the shooting, a denial which he was to repeat twice more to detectives at the scene and later at the precinct.
The statutory definition of criminally negligent homicide involves an interplay of two provisions. Penal Law § 125.10 provides, "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” Penal Law § 15.05 (4) provides that "[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. The 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.” As the Court of Appeals has made clear, however, "the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong [citations omitted].” (People v Boutin, 75 NY2d 692, 695-696.) "[C]riminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been 'substantial and unjustifiable’, and the failure to perceive that risk must have been a 'gross deviation’ from reasonable care.” (Supra, at 696.)
[4] People v Montanez (41 NY2d 53, supra) involved a prosecution for the shooting death by the defendant of an old friend. The two were alone for an hour and one half in the kitchen of the deceased’s home, conversing, according to prosecution witnesses, about a drug debt, when others, who were having drinks in the living room, heard a loud popping sound emanating from the kitchen. There was testimony that the deceased, bloodied, staggered into the living room, asking, " '[w]hat did you shoot me with?’ ”, to which the defendant responded, " 'I was just showing it to him’ ” or " T’m sorry. I just wanted to show it to him.’ ” (Supra, at 55.) The defendant dropped to his knees and began crying and hugging the deceased. A witness testified that he saw in defendant’s hand a small revolver, which he placed in his pocket before leaving the house. The gun was never recovered. The defendant testified that, after a friendly conversation unrelated to drugs, as he turned to put on his jacket to leave, the deceased told the defendant that he had " 'a nice piece to show you’ ”. (Supra, at 56.) The defendant turned, saw the gun, which, as he took it, went off. The defendant conceded that at the time the shot was fired the gun might have been in his hand and that he probably carried it into the living room where he placed it beside the body. He denied bringing the gun to the house and insisted that it belonged to the deceased.
The Court of Appeals found the evidence insufficient to sustain the conviction of manslaughter in the second degree or any lesser included offense, which would include, of course, criminally negligent homicide. Noting the possibility that a disagreement might have led to a heated argument, prompting the defendant to seize the weapon in order to threaten the deceased, the Court found that it was equally possible that the production of the gun was unrelated to any disagreement, "perhaps displayed in friendship and carelessly discharged as a result of ordinary negligence.” (Supra, at 57.) Most significantly though, the Court found that "even assuming that the weapon was in the defendant’s hand at the time of the shooting, neither this circumstance nor any other factors in the case compels the inference that the manner in which the defendant handled the weapon, if negligent, rose to the level of a criminal act [citation omitted].” (Supra, at 57-58.)
Here, as in Montanez (supra), defendant and the deceased were alone at the time of the shooting and defendant is the only witness to the event. Similarly, as in Montanez, defendant testified that the gun was in the deceased’s possession [5] before discharge and that the gun discharged when he, the defendant, reached over to take it from the deceased. Also, like Montanez, the People’s witnesses saw defendant with the gun only after the shooting. Indeed, defendant’s testimony that the deceased was the one in possession of the gun before the shooting went unrebutted. William Owes, a prosecution witness, unequivocally testified that he did not see either defendant or the deceased with a gun during the 45 minutes that he was with them immediately prior to the shooting. The discovery of a .357 round in the deceased’s pocket only served to corroborate defendant’s testimony on this point.
The dissent points to William Owes’s testimony that the gun belonged to defendant and concludes that defendant’s placing the gun in Calvin’s possession while the latter was in an intoxicated state is sufficiently blameworthy to support the conviction of criminally negligent homicide. This novel theory is presented for the first time on appeal. The People’s theory at trial was that defendant fired the fatal shot, and that was the theory on which the count of criminally negligent homicide was submitted to the jury. In any event, even if the jury were to conclude that the gun was defendant’s, there is no evidence that he placed it in Calvin’s hands. As noted, the only eyewitness testimony is that the gun was in Calvin’s possession at all times until moments before the shooting. Thus, the dissent’s conclusion that defendant "plac[ed] the gun in decedent’s possession” is sheer speculation, and we decline to sustain the conviction on such a tenuous ground. And, while displaying a weapon or making it accessible in the presence of an intoxicated person—the most unfavorable inferences which can be drawn from the evidence—may be an exercise of poor judgment, this conduct hardly rises to the level of "blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death” (People v Boutin, 75 NY2d 692, 696, supra), which is required to support a conviction for criminally negligent homicide.
Nor did defendant’s statements to the deceased’s family immediately following the incident contradict his trial testimony. According to defendant, the shooting occurred when he reached over to take the gun from the deceased. As he touched either the gun or the deceased, the gun discharged. Such a sequence of events could well lead defendant, 16 years old at the time, to believe that he had accidentally shot his best friend. Thus, the testimony of the deceased’s sister, similar to that of Owes, that the defendant came frantically [6] running into the apartment yelling, repeatedly, "I made a mistake and shot Cal”, fell far short of establishing that defendant’s conduct rose to the level of criminal negligence.
Moreover, the testimony of Dr. Pearle, the Deputy Medical Examiner, all but conclusively confirmed defendant’s description of the manner in which the shooting occurred. Most notably, Dr. Pearle testified that the single shot had been fired at close range, that is, from a distance of anywhere from one inch to two feet, but most surely closer than two feet. That the bullet travelled upward through the deceased’s body is not, as the dissent speculates, inconsistent with defendant’s testimony that the deceased was pulling the gun from his waistband when it discharged. There is no testimony as to how far out of his waistband the gun was at the point of discharge or the direction in which it was pointed. Significantly, the People did not, either through the testimony of Dr. Pearle or any other witness, attempt to posit the theory advanced by the dissent that the upward path of the bullet in the deceased’s body belies defendant’s account of the shooting. In this connection, it is noteworthy that Dr. Pearle did not observe in or around the wound any fibers, which would have been present had the bullet passed through apparel before entering the deceased’s body, as would have been the case had defendant fired the gun.
Furthermore, it should be noted, although defendant, as he acknowledged both at trial and to the deceased’s family the day after the shooting, lied to the police, his conduct otherwise suggested that what happened that evening in front of 2352 Walton Avenue did not rise to that level of serious blameworthiness on defendant’s part that is essential to a finding of guilt of criminally negligent homicide. His first thought was to run to the apartment of the deceased’s family. It was defendant who summoned an ambulance to the scene and it was defendant who hailed a passing patrol car.
Finally, the dissent makes much of the fact that defendant and the deceased had been drinking before the incident. While there is no evidence as to whether defendant was intoxicated at the time, the record reflects that the deceased’s blood alcohol level on autopsy was .17%, "a pretty high level”, which, Dr. Pearle noted, "would have [a]ffected [the deceased’s] mood, his coordination, his fine motor control”. This evidence does not at all detract from defendant’s version of the shooting and, if anything, supports it.
[7] Since the issue of legal insufficiency is fully preserved for appellate review, defense counsel having moved for a trial order of dismissal at the close of the People’s case and having cited Montanez (supra), the conviction of criminally negligent homicide should be reversed and the charge dismissed.
Accordingly, the judgment of the Supreme Court, Bronx County (George D. Covington, J.), rendered January 9, 1992, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and criminally negligent homicide and sentencing him to concurrent indeterminate terms of imprisonment of from 2 Vs to 7 years and lVs to 4 years, respectively, should be reversed, on the law, the count charging criminally negligent homicide dismissed and the matter remanded for a new trial on the remaining count.