Op-Ed | Is accidentally causing a person’s death a homicide?

I’ve been thinking about the sidewalk accident case in Greenwich Village in which an elderly man was pushed to the pavement, hit his head, and died. The man who pushed him has been charged with homicide. Is that charge proper?

On Oct. 11, 2025 in the West Village, Dana Escoffier, an 80-year-old resident who lived on Hudson Street crossed paths with 82-year-old Dean Whetzel, who lived around the corner. They were neighbors for 50 years. According to news reports, Whetzel apparently bumped into him. Escoffier allegedly shoved him back, sending Whetzel to the pavement where he suffered a fractured skull. He never regained consciousness and died on Nov. 5, 2025.

The city’s medical examiner ruled the death a homicide and a grand jury indicted Escoffier last month for criminally negligent homicide. According to a bystander, Escoffier said: “I pushed him because he bumped into me.” Escoffier is scheduled to be arraigned later this month.

Under New York’s Penal Law (§ 125.10) a person in guilty of criminally negligent homicide when he causes the death of another person with “criminal negligence,” which is defined as “failing to perceive a substantial and unjustifiable risk” that his actions will cause the death of another person. The punishment is up to four years in prison.

Unlike other homicide charges, such as murder or manslaughter, which typically require an intent to kill, criminally negligent homicide does not require an intent to kill, or even a conscious disregard of a risk of causing death, which is typically the requirement for a reckless killing. The difference between the state of mind for a reckless homicide, and that for a negligent homicide, is crucial. A person acts recklessly when he is aware of a serious risk of death from his conduct and takes the risk anyway. A person acts with criminal negligence when he is not aware of the serious risk of death but should be aware of that risk.

Some examples might help clarify the distinction, and whether the charge of negligent homicide in the pushing case is justified:

A motorist causes a fatal accident. If the motorist failed to notice a traffic signal, or was distracted by something on the roadway, she probably would not be charged with criminal negligence although she could be sued civilly. But if the motorist was drunk, texting, or exceeding the speed limit, a charge of criminally negligent homicide would be justified.

A subway conductor operates a train at twice the speed limit in a dangerous zone, resulting in a deadly crash. A charge of reckless manslaughter or criminally negligent homicide would be justified.

A caregiver who fails to provide adequate hydration or cooling to a vulnerable person during a heat wave, leading to death. A charge of reckless manslaughter or criminally negligent homicide would be justified.

A parent who leaves a young child in car, or physically strikes the child, or leaves a gun in a place where child could get it. A charge of reckless manslaughter or criminally negligent homicide would be justified.

A recent case of criminally negligent homicide in New York City is worth noting. On May 1, 2023, Jordan Neely, a 30-year-old black homeless man, was killed on a subway after being put in a chokehold by Daniel Penny, a 24-year-old white U.S. Marine veteran. Neely reportedly threatened passengers and Penny sought to restrain him by applying a chokehold, which caused Neely’s death. Penny was charged with criminally negligent homicide, but the jury acquitted him.

The circumstances in the Penny-Neely case are ambiguous. Critics of Penny characterized him as a vigilante motivated by racism who should have known that his chokehold would cause Neely’s death. Supporters of Penny highlighted his military service and called him a hero who sought to protect other passengers from a dangerous individual. The legal issue for the jury was whether Penny should have known, beyond a reasonable doubt, that his chokehold would cause the death of Neely.

The circumstances in the Greenwich Village case are even more ambiguous than the Penny-Neely case. Should Escoffier have known that that shoving Whetzel onto the sidewalk where he would strike his head on the pavement would present a substantial risk of causing Whetzel’s death? The difference between tort law and criminal law is important.

Tort law looks to compensate victims for negligent harms caused by others, and recognizes the so-called “thin skull” plaintiff, which means that you assume a risk that your victim may have an infirmity that might cause his death, even if you are unaware of it. But criminal law is different. It focuses not on compensation but on blame. And a person can’t be blamed criminally for accidentally killing someone unless he knew or should have known that his conduct presented a “substantial risk” that his conduct would cause that person’s death.

To be sure, the victim here was 82 years old and appeared to have been pushed or shoved onto a cement sidewalk. Apparently, there is no video, and the facts of the encounter will likely be strongly contested. If the case goes to trial, a conviction for criminally negligent homicide in my opinion would be a stretch.

But a verdict of guilt is not implausible.

Bennett L. Gershman is a distinguished professor at the Elisabeth Haub School of Law at Pace University.