Nova wrote:but im unsure if the risk of death has to be likely, of if a 33% or something chance of death, still very high, would count.
I mean, you're going to be looking for something evincing a depraved indifference to human life, right? I don't think the chance is as important as the way the action is performed.
Maybe I'm totally wrong (like I was about the common law thing, lol) but the mens rea requirement here is the same for either reckless endangerment or for DHM, the only difference being whether or not it succeeds. So, you can argue it in either direction: firing into a crowd? Firing above a crowd? (this wasn't enough in a case we read) Releasing a tiger?
Considering the mens rea should be "recklessly" duder would have to be aware and consciously disregard a substantial and unjustifiable risk/it must be a gross deviation from the standard of conduct that a reasonable person would observe in the situation. You have enough words there to interpret it in both directions and add some points.