TexasCHLforum.com

OK, to make it a little easier to understand, the difference (in Texas law and I assume in NY) between manslaughter and criminally negligent homicide is solely the mental state. If the person did the act recklessly, then it is manslaughter. If he only did the act negligently, it is criminally negligent homicide. Recklessly means he was aware of the risk of death and ignored that risk. Negligently means there was a risk he should have been aware of and he acted anyway.

In legal terms, criminally negligent homicide is a lesser included offense to manslaughter. So, a person cannot be convicted of both offenses because of the different mental states. The jury instructions posted on the web that I saw say to consider manslaughter. If he is convicted, ignore the negligent homicide charge. If he is not convicted because of a lack of evidence countering the justification (in other words you found him justified), do not consider the negligent homicide because the justification applies equally to both charges. If he was not convicted for any other reason (mostly lack of proof of the awareness of the risk), then you can consider the negligence.

The jury hung on the first charge. They could not go further because the situation did not have a valid resolution. The DA dropped the first charge in the hope that the jury would come to a decision on the negligence as a compromise solution. The judge, in my opinion, should have either not dropped the first charge and declared a mistrial so the whole case could be reheard, or should have dropped both charges. I think the judge could only make that decision if he could find out what factor was splitting the jury. If they were hung because some felt it was justified, he should have declared a mistrial at that point or dismissed both charges.

I doubt he could have found out what the factor was without being accused of jury tampering though. This is why I think the correct answer was to declare a mistrial because of the hung jury and then let the DA decide to drop the charges or take it to another trial.

All of this is based on the fact that he was charged at all and the charges need to be resolved. I also think the DA should be recalled over the charging at all, and the ADAs that prosecuted should be fired. But I have no say in any of that.