dissent">Cardámoste, J. (dissenting).

I dissent because in my view the defendant was entitled to a charge down to criminally negligent homicide. It is a settled rule, as a concomitant of the amplitude of the jury’s function, that' the Trial Judge should charge the lesser included crime except in those rare cases where every possible hypothesis but the higher crime is excluded. The reason for this is to .permit juries a latitude, not hemmed in by logic, so that they may, on almost any excuse and as a part of their .mercy dispensing function, convict on a lower degree of crime although conviction of a higher degree is clearly warranted. (People v. Malave, 21 N Y 2d 26, 29; People v. Mussenden, 308 N. Y. 558, 562.) Further, the defendant is entitled to the most favorable view of the evidence (People v. Usher, 39 A D 2d 459, affd. 34 N Y 2d 600), upon his request for a charge down. In that connection the record reveals that the defendant testified that there was no danger to the victim who voluntarily submitted to this “ religious rite ”. His lack of perception of the risk was ostensibly corroborated by other witnesses who participated in and witnessed this and similar rites where apparently no one suffered ill effects. While such a lack of perception perhaps does not comport with what a reasonable person would perceive, nonetheless, the governing statutes do not measure the defendant’s perception by an objective standard of what a “ reasonable ” man would perceive (Penal Law, §§ 125.10; 15.05, subd. 4); but rather, permit a “ subjective ” standard as to. what the defendant in fact perceived. :Such is a question of fact for the jury. The defendant’s conduct and claimed lack of perception, if believed, would make him guilty of criminally negligent homicide and it was, therefore, error for the. trial court to refuse to charge this lesser *22degree of homicide (People v. Asan, 22 N Y 2d 526; People v. Usher, supra).

Mottle, Mahoney and Del Veochio, JJ., concur with Wither, J. P.; Cardamons, J., dissents in a memorandum and votes to reverse the judgment and grant a new trial.

Judgment affirmed.

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