We respectfully dissent. Assuming, arguendo, that dangerous speed (see dicta in People v Boutin, 75 NY2d 692, 697 [1990]) can support a conviction for criminally negligent homicide while excessive speed alone is insufficient (as the majority opinion correctly points out), we conclude that other factors must exist to elevate excessive speed to dangerous speed before the prosecution has demonstrated “criminally culpable risk-creating conduct” (id. at 697) and that such conduct must be found in the manner and circumstances in which the vehicle is being physically operated (see id. at 696-697). Here, the prosecutor relied, in part, on defendant’s violation of the *1146conditions of his junior license (class DJ). That uncontested proof established that defendant operated the vehicle with more than two passengers under 21 years of age who were not members of his immediate family and he did not insure that all passengers had buckled their seat belts (see Vehicle and Traffic Law § 501-b [2]). County Court denied defense counsel’s request that the court charge that excessive speed alone is insufficient to sustain a finding of criminal negligence and that violations of the terms of defendant’s class DJ license were irrelevant to the manner in which he drove the car. Both requests, in our view, should have been granted because the People demonstrated, not only with their proof, but in their opening statement and summation, that the proof of criminal negligence consisted of speed, coupled with violations of the license restrictions.
Despite the laudatory purpose expressed in the legislative findings when these conditions were added to junior licenses, we do not accept that the Legislature intended for those conditions to result in a situation where a speeding 16 or 17 year old could be convicted of criminally negligent homicide when the same conduct would not support such a conviction if engaged in by persons 18 years of age or older. While the majority sets forth other possible exacerbating factors that might lead to a finding of criminal culpability,* the degree to which the jury erroneously relied on violations of the conditions of the class DJ license cannot be ascertained from this record. Accordingly, we would reverse and remit for a new trial.
Lahtinen, J., concurs. Ordered that the judgment is affirmed.
By this statement, we do not concede that legally sufficient evidence exists to support a finding of criminally negligent homicide — only that the other Vehicle and Traffic Law convictions cannot be addressed because defendant took no appeal from them. Nevertheless, it should be observed that the reckless driving, failure to keep right, crossing the double yellow line and speeding convictions all emanate from defendant having operated the vehicle at an excessive speed. Moreover, one questions, under the circumstances presented herein, how defendant could be criminally negligent by failing to perceive his conduct was dangerous while simultaneously driving recklessly because he perceived his conduct to be dangerous, yet ignored the danger.