Benjamin,' J.
The question on this appeal is whether a Grand Jury could validly indict a defendant for manslaughter in the second degree and criminally negligent homicide where he sold a dangerous drug (heroin) to one Muthig and provided the instruments for its injection and thereby caused Muthig’s. death. The County Court held that these facts did not charge a crime.
The defendant was indicted by the Grand Jury, of Rockland County and, upon arraignment, entered a plea of not guilty. The indictment charges him, under three counts, with the felonies of manslaughter in the second degree, criminally negligent homicide and criminally selling a dangerous drug in the third degree. The first count, for manslaughter, in the second degree, alleges that the defendant recklessly caused Muthig’s death on April 4,1970, by selling heroin to Muthig, which the latter, with instruments furnished by the defendant, injected into his body, as a result of which he died on April 5, 1970. The second count, for criminally negligent homicide, alleges that .the. defendant wilfully, with criminal negligence, caused Muthig’s death, on April 4, 1970 by selling heroin to Muthig, which the latter, with instruments furnished by the defendant, injected into his body, as a result of which he died on April 5, 1970. The third count, for criminally selling a. dangerous drug in the third degree, states that the defendant wilfully and knowingly sold heroin to Muthig on April 4, 1970, for which the'defendant received $15.
The defendant demurred to the first two counts of the indictment on. the ground that the facts stated do not constitute a crime (Code Crim. Pro., §.323, subd. 4), The County Court held the Penal Law does not contain any provision whereby the sale of a dangerous drug -and the means. of injecting it, thereby resulting in the death of the user, constitute the crime of manslaughter or criminally negligent homicide., The People contend that the facts as presented in these counts charge a crime and that the order should be reversed and the dismissed counts reinstated.
Section 125.15 of the Penal Law (manslaughter in the second degree) provides: “A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person ”.
Subdivision 3 of section 15.05 of the Penal Law defines “ recklessly ” as follows: “'A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a sub[219]*219stantial and unjustifiable risk that such result will occur or that such circumstance exists. 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.” Section 125.10 of the Penal Law (criminally negligent homicide) provides: . “A person is guilty of criminally negligent homicide when, with criminal negligence, he. causes the death of another person.”
Subdivision 4 of section 15.05 of the Penal Law defines “ criminal negligence ” as follows: “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. ”
There are numerous decisions involving (1) illegal sales of wood alcohol (People v. Licenziata, 199 App. Div. 106; People v. Voelker, 220 App. Div. 528; People v. Haber, 221 App. Div. 150) and (2) illegal use or sale of implements or drugs for the purpose of committing an abortion (People v. Gordon, 258 App. Div. 983; People v. McGonegal, 136 N. Y. 62;.People v. Williams, 260 App. Div. 1024, affd. 285 N. Y. 728; People v. Chester, 179 Misc. 864). Wood alcohol is by its very nature poisonous and the obvious result of its use, death, was known to the seller at the time of sale in People v. Licenziata (supra) and People v. Voelker (supra). Although it is á matter of common knowledge that the use of heroin can result in death, it is also a known fact that an injection of heroin into the body does not generally cause death. The homicide cases involving a sale or use of an illegal drug or instrument for the purpose of causing an abortion were prosecutions, as pointed out in the opinion below, pursuant to express statutory provisions (former Penal Law, § 1050; Penal Law, § 125.15, subd. 2). There are no provisions contained in the present Penal Law which set forth that the illegal sale of a dangerous drug which results in death to the user thereof constitutes manslaughter or criminally negligent homicide.
People v. Cline (270 Cal. App. 2d 328, Ann. 32 ALR 3d 582 [1969]) applied the felony murder doctrine as the basis for a homicide prosecution against a seller of dangerous drugs where death ensued from the use thereof. The. court said: “The defendant committed the felony-of furnishing a restricted dangerous drug without a prescription, an act which was inherently [220]*220dangerous to human life, directly and proximately causing the death of Bragg. Therefore, the defendant was properly found guilty of murder in the second degree.”
A California case involving death from an injection of heroin which was not a felony murder prosecution is People v. Hopkins (101 Cal. App. 2d 704 ]1951]), where it appeared that the defendant had furnished heroin and, after taking an injection himself, held the decedent’s arm with a handkerchief tourniquet, facilitating the taking of an injection by the deceased, who died soon after the injection from narcotic poisoning. The court held, upon the State’s appeal from the dismissal of an indictment for manslaughter, that the trial court had erred in granting the motion to dismiss; and found that there was reasonable and probable cause for the Grand Jury to return a true bill. The court said (p. 707) that in order to charge the defendant with manslaughter it was not necessary for the testimony before the Grand Jury to show that he had injected the heroin and that, if he had merely stood by and kept a lookout for passersby, he could be charged as a principal.
We reject the holdings in the Cline and Hopkins cases (supra) .because in our opinion the provisions of the Penal Law of New York do not make the act of selling a dangerous drug, which, when injected with instruments furnished by the seller of the drug, causes the death of the user, a homicide.
The District Attorney contends that the question of whether the act of the defendant in supplying the dangerous drug and the syringe constitutes the crime of manslaughter is one of fact (People v. Brengard, 265 N. Y. 100; People v. Parody, 248 App. Div. 269). He argues further that convictions for manslaughter have been brought under the former Penal Law section for many reasons, viz.: (collapsed coal pocket: People v. Orzel, 263 N. Y. 200; collapsed building: People v. Polstein, 184 App. Div. 260, affd. 226 N. Y. 593; People v. Buddensieck, 103 N. Y.
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Benjamin,' J.
The question on this appeal is whether a Grand Jury could validly indict a defendant for manslaughter in the second degree and criminally negligent homicide where he sold a dangerous drug (heroin) to one Muthig and provided the instruments for its injection and thereby caused Muthig’s. death. The County Court held that these facts did not charge a crime.
The defendant was indicted by the Grand Jury, of Rockland County and, upon arraignment, entered a plea of not guilty. The indictment charges him, under three counts, with the felonies of manslaughter in the second degree, criminally negligent homicide and criminally selling a dangerous drug in the third degree. The first count, for manslaughter, in the second degree, alleges that the defendant recklessly caused Muthig’s death on April 4,1970, by selling heroin to Muthig, which the latter, with instruments furnished by the defendant, injected into his body, as a result of which he died on April 5, 1970. The second count, for criminally negligent homicide, alleges that .the. defendant wilfully, with criminal negligence, caused Muthig’s death, on April 4, 1970 by selling heroin to Muthig, which the latter, with instruments furnished by the defendant, injected into his body, as a result of which he died on April 5, 1970. The third count, for criminally selling a. dangerous drug in the third degree, states that the defendant wilfully and knowingly sold heroin to Muthig on April 4, 1970, for which the'defendant received $15.
The defendant demurred to the first two counts of the indictment on. the ground that the facts stated do not constitute a crime (Code Crim. Pro., §.323, subd. 4), The County Court held the Penal Law does not contain any provision whereby the sale of a dangerous drug -and the means. of injecting it, thereby resulting in the death of the user, constitute the crime of manslaughter or criminally negligent homicide., The People contend that the facts as presented in these counts charge a crime and that the order should be reversed and the dismissed counts reinstated.
Section 125.15 of the Penal Law (manslaughter in the second degree) provides: “A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person ”.
Subdivision 3 of section 15.05 of the Penal Law defines “ recklessly ” as follows: “'A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a sub[219]*219stantial and unjustifiable risk that such result will occur or that such circumstance exists. 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.” Section 125.10 of the Penal Law (criminally negligent homicide) provides: . “A person is guilty of criminally negligent homicide when, with criminal negligence, he. causes the death of another person.”
Subdivision 4 of section 15.05 of the Penal Law defines “ criminal negligence ” as follows: “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. ”
There are numerous decisions involving (1) illegal sales of wood alcohol (People v. Licenziata, 199 App. Div. 106; People v. Voelker, 220 App. Div. 528; People v. Haber, 221 App. Div. 150) and (2) illegal use or sale of implements or drugs for the purpose of committing an abortion (People v. Gordon, 258 App. Div. 983; People v. McGonegal, 136 N. Y. 62;.People v. Williams, 260 App. Div. 1024, affd. 285 N. Y. 728; People v. Chester, 179 Misc. 864). Wood alcohol is by its very nature poisonous and the obvious result of its use, death, was known to the seller at the time of sale in People v. Licenziata (supra) and People v. Voelker (supra). Although it is á matter of common knowledge that the use of heroin can result in death, it is also a known fact that an injection of heroin into the body does not generally cause death. The homicide cases involving a sale or use of an illegal drug or instrument for the purpose of causing an abortion were prosecutions, as pointed out in the opinion below, pursuant to express statutory provisions (former Penal Law, § 1050; Penal Law, § 125.15, subd. 2). There are no provisions contained in the present Penal Law which set forth that the illegal sale of a dangerous drug which results in death to the user thereof constitutes manslaughter or criminally negligent homicide.
People v. Cline (270 Cal. App. 2d 328, Ann. 32 ALR 3d 582 [1969]) applied the felony murder doctrine as the basis for a homicide prosecution against a seller of dangerous drugs where death ensued from the use thereof. The. court said: “The defendant committed the felony-of furnishing a restricted dangerous drug without a prescription, an act which was inherently [220]*220dangerous to human life, directly and proximately causing the death of Bragg. Therefore, the defendant was properly found guilty of murder in the second degree.”
A California case involving death from an injection of heroin which was not a felony murder prosecution is People v. Hopkins (101 Cal. App. 2d 704 ]1951]), where it appeared that the defendant had furnished heroin and, after taking an injection himself, held the decedent’s arm with a handkerchief tourniquet, facilitating the taking of an injection by the deceased, who died soon after the injection from narcotic poisoning. The court held, upon the State’s appeal from the dismissal of an indictment for manslaughter, that the trial court had erred in granting the motion to dismiss; and found that there was reasonable and probable cause for the Grand Jury to return a true bill. The court said (p. 707) that in order to charge the defendant with manslaughter it was not necessary for the testimony before the Grand Jury to show that he had injected the heroin and that, if he had merely stood by and kept a lookout for passersby, he could be charged as a principal.
We reject the holdings in the Cline and Hopkins cases (supra) .because in our opinion the provisions of the Penal Law of New York do not make the act of selling a dangerous drug, which, when injected with instruments furnished by the seller of the drug, causes the death of the user, a homicide.
The District Attorney contends that the question of whether the act of the defendant in supplying the dangerous drug and the syringe constitutes the crime of manslaughter is one of fact (People v. Brengard, 265 N. Y. 100; People v. Parody, 248 App. Div. 269). He argues further that convictions for manslaughter have been brought under the former Penal Law section for many reasons, viz.: (collapsed coal pocket: People v. Orzel, 263 N. Y. 200; collapsed building: People v. Polstein, 184 App. Div. 260, affd. 226 N. Y. 593; People v. Buddensieck, 103 N. Y. 487; excessive blasting: People v. Clemente, 146 App. Div. 109, affd. 207 N. Y. 682; careless smoking: People v. Hoffman, 162 Misc. 677).
This is a case of first impression in the State. As long ago as 1897, the State of New York has had legislation dealing with narcotics (see former Penal Law, § 1752). Since 1938 the State has attempted to control the sale, use and distribution of narcotic drugs with further legislation (see former Penal Law, §§ 1751-1753, inclusive). The present Penal Law contains article 220—Dangerous Drug Offenses (§§ 220.00—220.46, inclusive). The Mental Hygiene Law since 1962 has contained provisions for the treatment of drug addiction (see art. 9—Drug [221]*221Addiction). In 1969 the punishment to be imposed upon persons convicted of drug crimes was increased (see Penal Law, §§ 220.05 — 220.44, inclusive). However, the legislation did not include in an amendment or addition to the homicide provisions of the Penal Law any reference to death caused by the use of dangerous drugs. In our opinion, if the Legislature had intended to include homicide by the selling of dangerous drugs, it would have amended the sections in the Penal Law relating to homicide.
The counts of the indictment for manslaughter in the second degree and criminally negligent homicide were properly dismissed.