dissents and votes to reverse the judgment appealed from, and to order a new trial, with the following memorandum: Contrary to the majority’s determination, I am of the view that the trial court erred in refusing the defendant’s request to charge criminally negligent homicide as a lesser included offense of murder in the second degree.
One acts with criminal negligence by failing "to perceive a substantial and unjustifiable risk [that a result described by a criminal statute] will occur” (Penal Law § 15.05 [4]). In support of its determination that a charge on criminally negligent homicide was not warranted in this case, the majority initially focuses on the defendant’s statement to the police upon his arrest.
It is true that the defendant’s statement to the police demonstrated that he perceived, rather than failed to perceive, the risk of injury to the victim in firing the gun at her, and disregarded the same. Specifically, in his statement to the police, the defendant indicated that he had fired the gun *789shortly before the fatal shot based on the codefendant’s assurance that it contained blanks, and observed that it made a hole in a wall. However, it should be stressed that the defendant, during his trial testimony, repudiated that part of his statement to the police concerning his observation of the hole in the wall.
As an alternate approach, the majority focuses on that part of the defendant’s trial testimony which seemed to indicate that the gun went off accidentally when it was thrown to him by the codefendant. However, it should be noted that (1) the defendant indicated in his statement to the police that he had "pointed the gun” and (2) an expert in the field of ballistics testified during the People’s rebuttal case that the gun which was used to kill the victim could not have been fired unless the trigger had been pulled to its "extreme rear” position.
Under these circumstances, there exists a reasonable view of the evidence which could support a jury finding that the defendant committed the lesser offense of criminally negligent homicide but not the greater offense of murder in the second degree (see, People v Green, 56 NY2d 427, 432-434; People v Glover, 57 NY2d 61; CPL 300.50 [1]).