A jury has found that defendant, an experienced nurse, caused the death of a patient, David Murphy, “with criminal negligence” (see Penal Law, § 125.10). That verdict is necessarily grounded upon the jurors’ finding that when defendant choked Murphy to subdue him, he “fail[ed] to perceive a substantial and unjustifiable risk” of death (see Penal Law, § 15.05, subd 4). The evidence in the record supports that determination.
First, the People submitted medical evidence that death may be caused by strangulation and that Murphy died from asphyxia due to strangulation. Next, they proved that defendant choked Murphy. Indeed, several witnesses testified not only that defendant was on top of Murphy, pulling his head up off the floor and choking him with his arm for a period of 8 to 10 minutes (4 to 5 minutes will cause death), but that defendant continued to apply pressure to Murphy’s neck even after the patient was under control. There was also evidence that choke-holds were not an acceptable method of restraining a violent patient and that the approved procedure is to overpower the patient with a sufficient number of staff attendants. Thus, the People proved that defendant’s conduct presented a substantial and unjustifiable risk.
The People then proved that defendant failed to perceive the risk of his conduct. One witness testified that on two *76occasions, after he told defendant that he was choking the patient, defendant answered, “I know it”. The witness advised defendant to let go of Murphy’s neck, but defendant nevertheless continued to apply pressure, albeit lessened pressure. Another witness testified that during the incident defendant was offered restraints to be placed on Murphy and defendant answered that he didn’t need them, “he had the patient choked out enough.”
The jurors, after hearing this evidence, found defendant guilty of failing to perceive a substantial and unjustifiable risk and they determined, as a question of fact, that defendant’s failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would observe under all the circumstances (Penal Law, § 15.05, subd 4). Their verdict was supported by the evidence and the judgment should be affirmed.
Hancock, Jr., Doerr and Schnepp, JJ., concur with Denman, J.; Simons, J. P., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and facts, and indictment dismissed.