People v. Lasch 152 A.D.2d 983

Adjudication unanimously modified on the law, defendant’s conviction for criminally negligent homicide vacated, and that count of the indictment dismissed, and as modified affirmed, in accordance with the following memorandum: The evidence at trial was legally insufficient to sustain the trial court’s finding that defendant was guilty of criminally negligent homicide (Penal Law § 125.10). The only proof of negligence in this case is that defendant was driving on the wrong side of the road. Such proof was legally and factually insufficient to establish beyond a reasonable doubt that defendant consciously engaged in conduct which resulted in the creation of an unjustifiable risk of death (see, Penal Law § 15.05 [4]; § 125.10; People v Paris, 138 AD2d 534; People v Perry, 123 AD2d 492, affd 70 NY2d 626; People v Beiter, 77 AD2d 214; People v Blair, 33 AD2d 1100; cf, People v Rooney, 57 NY2d 822; People v Buffington, 35 AD2d 1063). (Appeal from adjudication of Orleans County Court, Miles, J. — youthful offender.) Present — Callahan, J. P., Doerr, Boomer, Green and Davis, JJ.