Opinion
November 16, 1979
Appeal from the Jefferson County Court.
Present — Cardamone, J.P., Schnepp, Doerr, Witmer and Moule, JJ.
Judgment unanimously reversed, on the law and facts, and indictment dismissed. Memorandum: Defendant appeals from his conviction of criminally negligent homicide and assault in the third degree, contending that the evidence was insufficient to show that (1) the motor vehicle involved in the fatal accident was operated in a criminally negligent manner; and (2) that negligent operation of the motor vehicle was the cause of the accident. It is not necessary to consider other contentions raised by the defendant. At about 7:30 P.M. on March 10, 1978, a girl of 11 and a boy of 8, riding together on a small unlit bicycle, attempted to cross Factory Street in the City of Watertown. The point of crossing was not at an intersection. They fell in the vicinity of a railroad track which runs down the center of the street and were there struck by a car which continued on without stopping. The girl died a few days later; the boy suffered a fracture of the right femur. There was not sufficient evidence of defendant's intoxication or of any such condition being a cause of the accident. The opinion evidence of the rate of speed of the accident vehicle was given by witnesses whose opportunity to observe it was limited. There was no other evidence of negligent or erratic operation of the accident vehicle. There must be proof beyond a reasonable doubt that the death of this girl was the result of a "gross deviation" from the standard of care of a reasonable man (People v Haney, 30 N.Y.2d 328). The record in this case does not show evidence sufficient to prove beyond a reasonable doubt the criminal negligence of the defendant (People v Lewis, 53 A.D.2d 963) or that such negligence was the cause of the accident.