I would reverse the conviction. The People’s proof consisted almost entirely of circumstantial evidence against defendant. When such is the case, for guilt to be proven beyond a reasonable doubt the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them and must exclude to a moral certainty every hypothesis of innocence (People v Benzinger, 36 NY2d 29). This oft-stated rule becomes especially significant when examining several elements of this case. The proof offered at trial was largely medical in nature and consisted of a showing that until about one month before her death the deceased infant was reasonably healthy, and well cared for. She was hospitalized for a short period because of a problem in gaining weight. After her death it was discovered that the youngster, in the last month of her life, had suffered multiple rib fractures, a fractured radius of her right arm, multiple hemorrhages into the right lung, multiple hemorrhages beneath the skin of the scalp, various hemorrhages of the brain and a number of bruises about her body. The cause of death was attributed to massive subdural hematoma, compression of the brain, and disruption of the centers which control breathing and heart activity.
The only testimony linking defendant to any possible physical contact with the child which could be interpreted as contributing to the injuries and death were admissions made by defendant to a police officer indicating that on occasion she would pick the baby up quickly when the child was crying, losing her temper doing so, and grasp the baby much harder than she probably should, and in the process sometimes accidently striking the baby’s head on the crib. She also admitted that she sometimes shook the baby. There was no independent, direct proof by any witness who saw or could testify to these actions by defendant as required by CPL 60.50. In addition, the police officer’s testimony as to when defendant *209might have acted as she admitted to him is without a time frame which could be considered conclusive and unequivocal.
The court committed reversible error in the treatment of certain exhibits, consisting of five color photographs of the dead infant. Early in the trial a medical witness testified extensively concerning these exhibits, explaining in detail what each photograph showed. These exhibits were then offered in evidence. Over objection of counsel the exhibits were received in evidence. The prosecutor then requested permission of the court to show the exhibits to the jury. The court, rather than granting the somewhat monitored permission of in-court viewing, declared a recess and permitted the jurors to take the objected to exhibits to the jury room with them. Putting aside the propriety of receiving these exhibits into evidence in the first instance, the procedure followed by the court constituted reversible error. CPL 310.20 (subd 1) provides: "Upon retiring to deliberate, the jurors may take with them: 1. Any exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis supplied).
It has been held to be substantial error to permit exhibits to be taken into the jury room without consulting defense counsel (People v Dockum, 285 App Div 510). In Dockum the exhibits were given to the jurors during their deliberations and the court observed (p 513): "What use was made of them we do not know, but we may not assume that the presence of such exhibits with the jurors during their deliberations did not influence their verdict.” The possible contamination of a jury by exhibits, which by their nature are inflammatory, early in the trial and long before deliberations began, created a serious challenge to the fairness of defendant’s trial.
Finally, the proof offered by the People cannot sustain a conviction of defendant of murder in the second degree under subdivision 2 of section 125.25 of the Penal Law which provides: "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”. There was no witness who saw defendant strike, scratch or injure the baby in any manner or threaten to do so. The only proof on the issue of injuries inflicted on the infant has to be culled from the interrogation of defendant by the police officers and on the present record *210this fails to meet the statutory requirement to sustain the conviction (CPL 60.50; 70.10, subd 1; 70.20). Indeed, a serious question arises whether even these admissions made by defendant can be expanded to connect defendant with the death of the infant. In People v Poplis (30 NY2d 85, 87), defendant’s conviction for murder under Penal Law (§ 125.25, subd 2) was affirmed in the beating death of a Sti-year-old child, the court observing that "[t]he proof abundantly establishes that the death of Roxanne Felumero, the three-and-a-half-year-old child of defendant’s wife, was caused by repeated physical beatings by defendant”. It was pointed out that such beatings by the defendant were established by defendant’s wife as well as several witnesses. "It is most difficult in many cases to determine 'the difference between killing someone with reckless disregard of the consequences and killing someone with reckless disregard and under circumstances evincing a depraved indifference to human life’ (Gegan, [A Case of Depraved Mind Murder, 49 St. John’s L Rev 417] p 440). Accordingly, a trial court is required to examine the evidence with meticulous care before permitting a charge of manslaughter to be elevated to the crime of murder. On appeal, the degree of care cannot be less. [Footnote omitted.]” (People v France, 57 AD2d 432, 435.)
To meet the "depraved indifference to human life” standard imposed by subdivision 2 of section 125.25 of the Penal Law, there must be a showing of brutality, callousness and an inhumanity which transcends recklessness, criminal negligence, cruelty or tragedy (People v Poplis, supra; People v Stevens, 51 AD2d 659). A special kind of wantonness is required which is not present in this case. A new trial should be had on the lesser charges of manslaughter in the second degree and criminally negligent homicide.
Hancock, Jr., J. P., Schnepp and Callahan, JJ., concur with Moule, J.; Doerr, J., dissents and votes to reverse and grant a new trial in an opinion.
Judgment affirmed.