yes, in general it is. But when you have a suspect repeatedly telling you that he can't breathe, that we can hear on cell phone video, so obviously all the cops can hear it, and those same comps or just so nonchalantly choking the guy out, for 8 straight minutes, I think the intent is pretty clear.
pre-meditation is close to impossible in this situation (unless maybe they could dig up history of this cop's racial motivations--like how Mark Furman was discredited/tossed-out in the OJ trial).
They didn't just slap on 2nd-degree. They arrested him on 3rd degree and after deliberation, and one would assume further evaluation of evidence, they bumped it up to 2nd degree. Prosecutors don't often charge with something they don't think they can prove, pretty easily.