We note that New York has reached the same conclusion under its statutes. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922 (1964), overruled on other grounds People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); see also People v. Martinez, 81 N.Y.2d 810, 811-12, 595 N.Y.S.2d 376, 611 N.E.2d 277 (1993) (settled law that attempted manslaughter in the first degree is non-existent crime); but see People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200 (1967) (no reversal required where defendant pleaded guilty to attempted manslaughter in compromise with prosecution). Alabama, Massachusetts, Maine, Nevada, and Wisconsin have done likewise.

" (Internal quotation marks and brackets omitted.)); State v. Johnson, 103 N.M. 364, 707 P.2d 1174, 1178-79 (N.M.Ct.App. 1985) (holding that crime of attempted "depraved mind" murder — analogous to attempted "reckless" manslaughter as described in HRS § 707-702(1)(a) — does not exist); People v. Martinez, 81 N.Y.2d 810, 595 N YS.2d 376, 377, 611 N.E.2d 277 (1993); People v. McDavis, 97 A.D.2d 302, 469 N.Y.S.2d 508, 510 (1983) ("[T]here can be no attempt to commit a crime that does not involve a specific intent, such as manslaughter in the second degree, a crime predicated upon a reckless act."); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739, 740 (1975) (same proposition); People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 605, 225 N.E.2d 200 (1967); State v. Carson, 292 Or. 451, 640 P.2d 586, 593 (1982); Commonwealth v. Griffin, 310 Pa. Super. 39, 456 A.2d 171, 177 (1983); Hull v. State, 553 S.W.2d 90, 94 (Tenn. Crim. App. 1977); and State v. Norman, 580 P.2d 237, 239-40 (Utah 1978) ("[I]f there was reckless conduct done with intent to commit manslaughter, it would be attempted murder and not merely attempted manslaughter. We hold that there cannot be an attempt to commit manslaughter under [the statute].

Many courts have recognized "`intentional' and `reckless' are inconsistent terms." Stennett v. State, 564 So.2d 95, 96 (Ala. Crim. App. 1990), citing People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1975); State v. Johnson, 103 N.M. 364, 707 P.2d 1174, 1178 (N.M.App. 1985); Commonwealth v. Hebert, 373 Mass. 535, 368 N.E.2d 1204, 1206 (1977); Rhode v. State, 181 Ind. App. 265, 391 N.E.2d 666, 669 (1979); State v. Melvin, 49 Wis.2d 246, 181 N.W.2d 490, 492 (1970); Hull v. State, 553 S.W.2d 90, 94 (Tenn. App. 1977); Bailey v. State, 100 Nev. 562, 688 P.2d 320, 321 (1984); State v. Howard, 405 A.2d 206, 212 (Me. 1979); Gonzales v. State, 532 S.W.2d 343, 345 (Tex. App. 1976); State v. Almeda, 189 Conn. 303, 455 A.2d 1326 (1983); People v. Hernandez, 44 Colo. App. 161, 614 P.2d 900 (1980); People v. Broussard, 76 Cal.App.3d 193, 142 Cal.Rptr. 664 (1977); Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935); Commonwealth v. Griffin, 310 Pa. Super. 39, 456 A.2d 171 (1983); State v. Zupetz, 322 N.W.2d 730 (Minn. 1982); and Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422, 434 (1957).

One may not intentionally attempt to cause the death of another human being by a reckless act.'); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1964) ('There must be an intent to commit a specific crime in order to constitute an attempt. An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.'); . . .

To conclude otherwise is "logically repugnant" (People v. Brown, 21 A.D.2d 738, 739; see, People v. Foster, supra, at 152-153; see also, People v. Zimmerman, 46 A.D.2d 725). Accordingly, we would affirm the judgment finding defendant guilty of criminal possession of a weapon in the third degree and, as a matter of discretion in the interest of justice, reverse the judgment for attempted manslaughter in the first degree (see, People v. Jackson, 49 A.D.2d 680). Mahoney, J., concurs.

See People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974) ("An attempt is an intentional act. Manslaughter . . . is a reckless act. One may not intentionally attempt to cause the death of another human being by a reckless act."); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1975) ("There must be an intent to commit a specific crime in order to constitute an attempt. An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.

Because recklessness is a lower degree of culpability than the intentional state of mind required for an attempt, some courts have held that attempted manslaughter is not an included offense of attempted murder. See e.g., State v. Howard, 405 A.2d 206 (Me. 1979) (attempted manslaughter is a "logical impossibility"); People v. McDavis, 97 A.D.2d 302, 469 N.Y.S.2d 508 (1983) (one cannot attempt a crime predicated upon a reckless act); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975) (one cannot intentionally attempt to cause death by a reckless act). Other courts, however, have held the opposite with regard to situations where, as in voluntary manslaughter, the state of mind is the same as in murder.

In support of his position, appellant cites several decisions of the courts of other states that have held there is no such crime as attempted voluntary manslaughter. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1964); overruled on other grounds, People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Reagan, 111 Ill. App.3d 945, 67 Ill.Dec. 506, 444 N.E.2d 742, 744 (1982), aff'd, 99 Ill.2d 238, 75 Ill.Dec. 701, 457 N.E.2d 1260 (1983); People v. Weeks, 86 Ill. App.2d 480, 230 N.E.2d 12, 14 (1967). These decisions have been severely criticized by commentators as failing to recognize that voluntary manslaughter — homicide mitigated downward from murder as a result of serious, legally adequate provocation — can be committed with an intent to kill.

However, murder in the second degree under subdivision 2 of section 125.25 Penal of the Penal Law involves no intent but instead requires a culpable mental state of recklessness. One may not intentionally attempt to cause the death of another by a reckless act (People v. Acevedo, 32 N.Y.2d 807; People v. Foster, 19 N.Y.2d 150; People v. Jackson, 49 A.D.2d 680; People v. Zimmerman, 46 A.D.2d 725; People v. Williams, 40 A.D.2d 1023; People v. Brown, 21 A.D.2d 738). For these reasons, count two of this indictment is dismissed (CPL 210.20, subd. 1, par [a]; 210.25, 200.50, subd. 4).

The possession of a shotgun without a certificate is not "necessarily included" in the crime of possession of a "firearm" as defined in the Penal Law, which were the only acts charged in the instant petition. (CPL 1.20, subd [37]; People v Jackson, 49 A.D.2d 680, 681.) The petition is dismissed.