concurring.
I agree with the majority’s determination that the jury charge in this case was deficient, warranting a reversal. I write separately, however, to define more clearly the elements the State must establish in order to sustain a conviction for reckless manslaughter. I appreciate that although the issues presented in this appeal may not require such an exposition, it may prove instructive on the remand for retrial resulting from the Court’s reversal of the conviction.
In enacting the current Code of Criminal Conduct, N.J.S.A. 2C:1-1 to 2C:98-4, the Legislature explicitly excluded a proposed negligent homicide provision, and instead limited criminal culpability for unintentional homicides to cases where the cause *382of death was the defendant’s reckless conduct. N.J.S.A. 2C:11-4(b)1. Under the Code, a person acts recklessly
when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. [N.J.S.A. 2C:2-2b(3).]
The requirement that a gross deviation from a reasonable person’s standard of conduct be established, a standard that is also an element of criminal negligence, see N.J.S.A. 2C:2-2b(4), is an integral element of the Code’s attempt to distinguish conduct that gives rise to criminal culpability, as opposed to merely civil liability. See id. It follows that unless there is sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant’s conduct amounted to a gross deviation from the standard of conduct of a reasonable person, it would be improper to allow a jury to determine and return a guilty verdict for an offense that requires “recklessness.” The practice in our State implicitly recognizes that only a gross deviation from reasonable care amounts to recklessness. Thus, consistent with this understanding the practice generally has been to charge a jury on reckless manslaughter only when the evidence allows a finding that an accidental shooting was either the result of horseplay or the consequence of the defendant’s unjustifiable decision to arm himself. In other words, the surrounding circumstances must indicate much more than ordinary carelessness or an accident that could not have been anticipated. For example, in State v. Rovito, 99 N.J. 581 (1985), it was proper to charge the jury on reckless manslaughter where the defendant was a police officer who invited some of the guests at a fraternity party to play Russian Roulette with his service revolver.1 Similarly, the reckless manslaughter *383statute was properly applied in State v. Reed, 211 N.J.Super. 177 (App.Div.1986), sentence aff’d, 215 N.J.Super. 105 (App.Div.), certif. denied, 108 N.J. 667 (1987), where, as a prank, defendant pointed his shotgun at his girlfriend and pulled the trigger in the mistaken belief that the gun was unloaded. Finally, in State v. Morales, 111 N.J.Super. 521 (App.Div.1970), certif. denied, 57 N.J. 433 (1971), the court noted there was sufficient evidence from which a jury could have inferred criminal negligence, i.e., recklessness, where one defendant produced a firearm with which a second defendant, assuming the weapon was a toy, fatally shot the victim. In all of these cases, there was evidence that defendant’s conduct, either in pointing a firearm at a third person or inviting its use, posed a special danger, materially different in kind from merely handling a firearm that accidentally discharged.
In cases where a charge of manslaughter was based on a shooting that was the result of an alleged accidental discharge, as opposed to misuse of a gun believed to be unloaded, there were sufficiently egregious circumstances surrounding the defendant’s possession or handling of a firearm that would permit a jury to infer that defendant’s conduct created a substantial and unjustifiable risk that death or serious injury would result. In State v. Curtis, 195 N.J.Super. 354 (App.Div.), certif. denied, 99 N.J. 212 (1984), defendant was convicted of aggravated manslaughter for the accidental shooting of his friend’s mother during an altercation between defendant, his friend, and his friend’s stepfather in which all three principals were armed with rifles or shotguns. In State v. Robinson, 139 N.J.Super. 475 (App.Div.1976), although defendant was subsequently convicted of murder, the court found that there was sufficient evidence to charge the jury on manslaughter where defendant alleged that the victim was shot accidentally during a struggle after defendant attempted to display the weapon in order to intimidate the victim in a dispute over drug payments.
The experience of other states parallels that of New Jersey, with cases involving involuntary manslaughter falling into two *384broad categories: horseplay and accidental shootings involving defendants who armed themselves for reasons other than legitimate self-defense. The horseplay cases provide tragic illustration of why some conduct with regard to the handling of firearms is so egregious as to require criminal sanction despite the fact that the defendant did not intend to harm the victim. For example, in McMullen v. State, 444 So.2d 1063 (Fla.App.1984), defendant, after drinking at a party during which he had shot objects off his friend’s heads at a range of five to six feet, accidentally shot and killed another person who challenged him to duplicate the feat at a range of thirty feet. Although defendant testified he believed the gun to be unloaded, the trial court found this to be irrelevant, and sustained the defendant’s conviction for involuntary manslaughter, observing that
[t]here is no question that the deliberate act of pointing a gun at another human being, especially one who is visibly intoxicated, amounts to an act in utter disregard for the safety of others, and one that appellant reasonably should have known was likely to cause death or great bodily injury. [McMullen, supra, 444 So.2d at 1064.]
Similar cases include Marasa v. State, 394 So.2d 544 (Fla.App.), review denied, 402 So.2d 613 (Fla.1981) (defendant, a guest at a “drug and alcohol” party, pointed a gun at another party guest in the mistaken belief that it was unloaded); O’Berry v. State, 348 So.2d 670 (Fla.App.1977) (victim, believing gun to be unloaded, gave it to defendant and instructed her to shoot him). Other cases finding evidence of horseplay with a firearm sufficient to establish reckless manslaughter include People v. Zahner, 77 Ill.App.3d 706, 33 Ill.Dec. 204, 396 N.E.2d 593 (1979) (one of two brothers involved in wrestling match over gun accidentally killed when other brother attempted to load gun); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963) (defendant and decedent, his girlfriend, were playing with his shotgun while he was visiting her); State v. Wagner, 50 N.C.App. 286, 273 S.E.2d 33 (1981) (defendant playing with a loaded shotgun).
In a similar fashion, the cases involving unjustified use of a firearm illustrate conduct that experience has shown leads to tragic consequences with sufficient frequency as to warrant *385criminal sanction. As the court observed in McBride v. State, 191 So.2d 70, 71 (Fla.App.1966),
by his act of becoming voluntarily intoxicated, in needlessly having on his person a deadly weapon which he brandished within the decedent’s home in a careless and reckless manner, he set the stage for the tragedy which ultimately followed even though he may have had not [sic] intention of killing the decedent.
Other circumstances that have been found to amount to a sufficiently egregious deviation from a reasonable standard of care, thus permitting a jury to find criminal recklessness, include discharging a rifle in the general direction of a group of people in order to break up a fight, People v. Fernetti, 117 Ill.App.3d 44, 72 Ill.Dec. 537, 452 N.E.2d 790 (1983), rev’d on other grounds, 104 Ill.2d 19, 83 Ill.Dec. 375, 470 N.E.2d 501 (1984); drawing a loaded gun during a heated argument, State v. Boyd, 61 N.C.App. 238, 300 S.E.2d 578, cert. denied, 308 N.C. 545, 304 S.E.2d 238 (1983); carrying a shotgun during a drunken argument outside a bar, Williams v. State, 336 So.2d 1261 (Fla.App.1976); engaging in a drunken wrestling match over a loaded shotgun, People v. Chew, 45 Ill.App.3d 1024, 4 Ill.Dec. 481, 360 N.E.2d 417 (1977); or confronting a sister’s ex-boyfriend with a loaded rifle, People v. Harris, 159 Mich.App. 401, 406 N.W.2d 307 (1987).
In his summation, the prosecutor in this case invited the jury to find that defendant could have been criminally reckless in merely inviting a third person into an apartment containing a loaded handgun or picking up such a handgun in the presence of a third person. It appears that the court’s charge to the jury, which stated, in relevant part: “in and of itself, it is not illegal to keep a loaded gun in one’s home. You will have to determine whether in light of all the circumstances, its presence in the defendant’s home created a substantial and unjustifiable risk which the defendant was aware and consciously disregarded,” (emphasis added), would have allowed the jury to convict on these facts alone. In my opinion, the mere coincidence of guests and a loaded gun in the same apartment does not amount to recklessness. While a person might be negligent *386in leaving his gun in such a condition, absent extraordinary circumstances not present here, such as knowledge that small children will be present and have access to the gun, such conduct does not amount to the gross deviation from a reasonable standard of care required by N.J.S.A. 2C:2-2. Therefore, the measure of the adequacy of the State’s proofs must be the evidence presented regarding defendant’s conduct at the time of the shooting.
Focusing on the conduct of the defendant relevant to the actual shooting, the State must prove more than that defendant was handling the weapon at the time it accidentally discharged. Both our courts and courts of other states have limited the applicability of reckless manslaughter to cases in which there was evidence of horseplay or accidental shootings involving defendants who armed themselves for reasons other than legitimate self-defense. Side by side with such opinions, however, are a series of cases in which appellate courts have reversed convictions for involuntary manslaughter where there was no evidence that the firearm was intentionally discharged or that it was handled so recklessly as to constitute culpable negligence. It is unnecessary to describe the individual facts of these cases, since they all reach an identical conclusion: when the State can show only that defendant was holding a loaded firearm that accidentally discharged, resulting in the victim being shot, there is no rational basis for a finding of criminal culpability.2 See, *387e.g., Parker v. State, 318 So.2d 502 (Fla.App.1975), cert. denied, 330 So.2d 21 (1976); State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485 (1959); State v. Robinson, 229 N.C. 647, 50 S.E.2d 740 (1948) (victim survived, court reversed defendant’s conviction for assault with a deadly weapon); State v. Holshouser, 15 N.C.App. 469, 190 S.E.2d 420 (1972); see also People v. Spani, 46 Ill.App.3d 777, 5 Ill.Dec. 238, 361 N.E.2d 377 (Ill.App.1977) (weapon discharged as defendant placed it on a table; conviction for involuntary manslaughter overturned on the grounds of insufficient evidence).
I believe that under the law generally applicable in this case, the jury should have been instructed to find for the defendant if it believed his version of the events that occurred in the apartment on the night of the shooting. Defendant testified that the victim picked up the gun from the bookshelf and was shot when the gun discharged as defendant attempted to uncock the revolver after disarming her. In light of the tragic occurrences that frequently occur when people who are unfamiliar with firearms or who are unaware that the gun they are handling is loaded come into possession of such weapons, I cannot see how attempting to disarm such a person amounts to a gross deviation from the standard of care exercised by a reasonable person. Cf. State v. Crisp, 64 N.C.App. 493, 307 S.E.2d 776 (1983) (evidence showing that defendant was attempting to disarm the victim who had put gun to his own head found insufficient as a matter of law to sustain a conviction for involuntary manslaughter).
The State, however, argued a different version of the facts to the jury that, taken as true, would permit a jury to find that defendant’s conduct amounted to a gross deviation from the standard of care exercised by a reasonable person. There was *388evidence, based on the pre-trial statement made to police by defendant’s brother, that defendant picked up the gun,3 and conflicting testimony from defendant himself on whether the gun had been stored in its holster or cocked at the time it discharged. From this, the jury could have inferred that defendant picked up the gun, removed it from the holster, and cocked it. The act of unholstering and actually cocking a loaded weapon in the presence of others, under circumstances in which there was no sound reason to ready the weapon for firing, could be considered by a jury to be criminally reckless behavior.
Therefore, the jury should have been instructed that if it found beyond a reasonable doubt that defendant, rather than the victim, had cocked the gun, thus increasing the likelihood of its being fired, cf. State v. Griffin, 273 N.C. 333, 159 S.E.2d 889 (1968) (finding that there was no evidence that accidental shooting was not the result of the defendant’s own recklessness), it could find defendant guilty of reckless manslaughter.
With these additional observations, I concur in the result reached by the Court.
HANDLER, J., concurring in the result.
For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.
It is interesting to note that the defendant in Rovito was acquitted on the involuntary manslaughter charge, and was convicted only of unlawful disposition of a weapon. N.J.S.A. 2C:39-9d. See Rovito, supra, 99 N.J. at 583.
WhiIe the court in People v. Moczarney, 65 Ill.App.3d. 410, 22 Ill.Dec. 224, 382 N.E.2d 544 (1978), indicated that merely drawing a loaded gun in the presence of others could constitute reckless conduct, it did so in the context of illustrating how reckless conduct could be established in the absence of evidence that defendant actually pointed the gun at the victim. The cases cited by the court all involved the handling of loaded weapons by intoxicated persons in crowded places. Furthermore, the record in Moczamey, which involved a fatal accidental shooting at a party in which defendant and the other guests were drinking heavily, playing Russian Roulette, and waving a loaded gun at each other, was replete with direct testimony of defendant's reckless acts. See Moczarney, 65 Ill.App.3d at 416-17, 22 Ill.Dec. at 228-29, 382 N.E.2d at 548-59. The comment by the Moczamey court must be read in its original context, and in no way *387supports the proposition that merely picking up a loaded handgun, without more, constitutes reckless conduct.
At trial, defendant’s brother, who testified that he did not know who picked up the gun, explained the inconsistency of his statements on the grounds that he never actually saw what happened but assumed, in his discussion with the police, that since the gun was in defendant’s hand after the shooting, defendant must have picked it up off the shelf.