I respectfully disagree with the majority’s conclusion that manslaughter in the second degree is not a lesser included offense of depraved indifference murder under Penal Law § 125.25 (4). In my opinion, the risk-creating conduct required for manslaughter in the second degree is always satisfied by the commission of depraved indifference murder.
The mens rea of recklessness under manslaughter in the second degree* is the disregard of a “substantial and unjustifiable risk” of death (Penal Law § 15.05 [3]). The mens rea of depraved indifference murder under Penal Law § 125.25 (4) is reckless conduct which “creates a grave risk of serious physical injury or death” under circumstances which evince depraved indifference to human life. Serious physical injury is “physical injury which creates a substantial risk of death” (Penal Law § 10.00 [10] [emphasis added]). Therefore, I conclude that one who disregards a grave risk of serious physical injury which causes death, concomitantly disregards a “substantial and unjustifiable risk” of death.
The Court of Appeals has implicitly agreed. In People v Suarez (6 NY3d 202, 213 [2005]), it declared that “[r]eckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been.” Rather, “[t]he critical statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant’s underlying depraved indifference” (id. at 213-214; see People v Feingold, 7 NY3d 288, 292-294 [2006]; People v Hafeez, 100 NY2d 253, 260 [2003, Rosenblatt, J., concurring]).
Thus, because the risk-creating conduct required for manslaughter in the second degree is always satisfied by the commission of depraved indifference murder under Penal Law § 125.25 (4), manslaughter in the second degree is a lesser included offense. Assessing whether a reasonable view of the evidence would support a finding that this defendant committed the lesser offense but not the greater, “[o]ur inquiry is not directed at whether persuasive evidence of guilt of the greater crime exists, as it does here, but whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one” (People v Van Norstrand, 85 NY2d 131, 136 [1995]). *199Viewing the evidence in the light most favorable to defendant (see People v Johnson, 45 NY2d 546, 549 [1978]; People v Hendrie, 24 AD3d 871, 874 [2005], lv denied 6 NY3d 776 [2006]), I find that it does not exclude every possible hypothesis other than that of guilt of the higher crime. Thus, the lesser included offense should have been charged (see People v Johnson, 45 NY2d at 549). As County Court denied defendant’s request to charge, the judgment must be reversed.
Cardona, P.J., Carpinello and Rose, JJ., concur with Spain, J.; Peters, J., dissents in a separate opinion.
Ordered that the judgment is affirmed.
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A person is guilty’of manslaughter in the second degree when he or she “recklessly causes the death of another person” (Penal Law § 125.15 [1]).