In determining the type of homicide, the mental state of the oender at the time of the commission of the homicide is important. Having intent to kill and doing the act is most serious and is termed murder. Other culpable mental states include reckless or negligent. Reckless conduct is dened as when a person is “aware of and consciously disregards a substantial and unjustiable risk…” (NYS Penal Law §15.05 [3]). Criminal negligence is when a person “fails to perceive a substantial and unjustiable risk…” (NYS Penal Law §15.05 [4]).