OPINION OF THE COURT
Simons, J.The issue on this appeal is . the sufficiency of the People’s evidence to sustain the jury’s finding that defendant was guilty of criminal negligence in causing the death of David A. Schifano in a motor vehicle accident (Penal Law, § 125.10).
The accident happened at about 2:00 a.m. on December 4, 1977. Defendant had been working the previous evening as a waitress in the Country House Restaurant in East Rochester. At about 11:00 p.m., after completing work, she went to a discotheque the floor below the restaurant and there she visited with friends until she left between 1:30 a.m. and 2:00 a.m. to drive home alone in her 1968 Chevrolet sedan. While at the discotheque, she had two or three "Singapore Slings”.
The accident occurred on Plank Road in Penfield, New York, near the Landmark Inn. Plank Road is a two-lane paved highway, straight and level for a considerable distance from the scene of the accident in both directions. On the night" of the accident, the weather was clear and the road was dry. Defendant had entered Plank Road by turning right from an intersecting highway about .2 of a mile west of the scene and she was proceeding east when the accident occurred. There was no street lighting in the area at the time but there was some illumination of the road from a neon beverage sign in the window of the inn and lights in the parking lot behind it. Three or four vehicles were parked on the shoulder of the road near the inn.
Immediately before the accident, decedent and his companion, Leonard Colantoni, left the Landmark Inn to go home. They started across Plank Road walking north to south to enter Colantoni’s van which was parked on the south side of the road.
When Colantoni was in the road, about 10 feet ahead of decedent, he observed the headlights of defendant’s car to the west. He watched the car as it approached them and then yelled to decedent to hurry because the car was traveling fast. After reaching the side of the road, Colantoni heard a loud noise, saw broken glass and saw something fly and hit the road as the car continued on without stopping. Colantoni *216estimated defendant’s speed at 60 miles per hour, "maybe more”.
After the accident, Colantoni found articles of decedent’s clothing in the road, his body in a ditch approximately 141 feet from the point of impact and decedent’s severed leg about 20 feet from the body. Decedent apparently was killed instantly by the impact. The pathologist testified that there were several major injuries and that decedent’s blood alcohol level was .11% by weight.
The only other witness to the accident was defendant. She testified that she was proceeding easterly on Plank Road at 40 miles per hour, that there was no other traffic on the highway and that just after passing the inn she saw two men about 40 feet in front of her, one off the road to her right, and the other just behind him. As she approached, she drove her car slightly to the left to avoid them. She did not realize 'that she I had hit anyone but she slowed down after noticing that her •v radio went off and her windshield was cracked. Nevertheless, she drove on home and it was there, after examining the J damage to her car, that she realized that she had hit someone and called the police. Colantoni had testified that defendant did not apply her brakes and that he did not hear a horn at any time. Defendant admitted that she did not apply her brakes and she could not recall sounding her horn. Defendant took a breathalyzer test at 4:50 a.m. and it resulted in a reading of .07%.
Defendant was indicted on three counts: criminal negligence; leaving the scene of an incident (Vehicle and Traffic Law, § 600, subd 2); and operating a motor vehicle under the influence of alcohol or drugs (Vehicle and Traffic Law, § 1192, subd 1). The criminal negligence count charged defendant with causing decedent’s death "by operating a motor vehicle while under the influence of alcohol at an excessive rate of speed on a straight level road and thereby failing to observe” decedent, although there was no obstruction to her vision. The jury convicted defendant of criminal negligence and leaving the scene but acquitted her of driving while under the influence of alcohol.
Section 125.10 of the Penal Law provides that "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” A person acts with criminal negligence with respect to a result or circumstance "when he fails to perceive a substantial and *217unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law, § 15.05, subd 4).
Considering the evidence in the light most favorable to the People, as we must, the proof established that defendant was operating her automobile at night on a straight and level rural road, partially illuminated by the lights of a nearby tavern, at a speed of 60 miles per hour in a 40 mile-per-hour zone, at a time when there were three or four other cars parked in the vicinity on the shoulder of the highway; that she saw two men when they were approximately 40 feet in front of her, swerved slightly to the left to avoid hitting them but struck one man, damaging the right headlight, right front fender and right side of the windshield of the car. We do not think , that this evidence establishes a "gross deviation” from the standard of care of a reasonable person under the circumstances.
The People place considerable emphasis on defendant’s failure to sound her horn or apply her brakes after she observed the pedestrians. Defendant was confronted suddenly by an unanticipated situation, however, and even if her spontaneous reaction to the emergency was wrong, it did not constitute a gross deviation from the standard of reasonable care. Under familiar rules, if an emergency is the result of defendant’s own inattention it may not serve as an excuse for her negligent conduct. But the existence of the emergency situation does provide a different standard of reasonableness for judging her actions after the emergency was created. "It is * * * not the conduct after the emergency has arisen which is not excused, but the prior negligence” (Prosser, Torts [4th ed], § 33, p 170; emphasis added). Thus, although defendant may have failed to exercise the required care before she observed the pedestrians, her failure to sound her horn or brake after being confronted with the emergency cannot serve to magnify her criminal culpability and it is at least arguable that her swerve to the left to avoid striking Schifano was the most reasonable course of action under the conditions.
The issue, then, is whether defendant’s illegal speed and her failure to perceive the danger, considering the traffic, road conditions and lighting conditions existing that night constituted criminal negligence.
*218In People v Haney (30 NY2d 328) the Court of Appeals, recognizing the difficulty of clarifying the elements necessary to establish criminal negligence, observed that "two main considerations should be emphasized. Firstly, criminal liability cannot be predicated upon every careless act merely because its carelessness results in another’s death; and, secondly, the elements of the crime 'preclude the proper condemnation of inadvertent risk creation unless "the significance of the circumstances of fact would be apparent to one who shares the community’s general sense of right and wrong”.’ (Model Penal Code, Tent. Draft No. 9, supra, at p. 53, citing Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 417.)” (People v Haney, supra, at p 335.) The court noted that the quantum of proof required for criminal negligence is " 'appreciably greater than that required for ordinary civil negligence by virtue of the "substantial and unjustifiable” character of the risk involved and the factor of "gross deviation” from the ordinary standard of care.’ (Commission Staff Notes, Gilbert Criminal Code and Penal Law [1971], supra, p. 2-248; cf. Prosser, Law of Torts [4th ed.], § 31; Restatement, Torts, § 282.)” (People v Haney, supra, at pp 333-334.)
In Haney the Court of Appeals tested the legal sufficiency of an indictment, not the evidence after trial. Defendant Haney was accused of striking and killing a pedestrian in mid-intersection while driving an automobile through a red light on a city street at a speed of 52 miles per hour during daylight hours. The court held the indictment sufficient and stated that it was for the trier of the facts to evaluate defendant’s conduct and his failure of perception and to determine whether defendant’s conduct constituted a gross deviation from the standard of reasonable care (and cf., also, People v Soto, 44 NY2d 683 [drag racing on a city street]).
By contrast, this defendant was driving down a straight and level highway in a sparsely populated area with her lights on. The area was dark and the road free of other traffic, circumstances in which she could reasonably expect that anyone crossing the road would see her headlights and conduct themselves accordingly. Seeing the victim from 40 feet away, she swerved, albeit not enough, to avoid striking him. Such conduct does not constitute a gross deviation from the ordinary standard of care held by those who share " 'the community’s general sense of right and wrong’ ” (People v Haney, supra p *219335; see People v Roberts, 72 AD2d 954; People v Lewis, 53 AD2d 963).
The judgment should be modified by reversing the conviction for criminal negligence, dismissing the first count of the indictment charging that crime and vacating the sentence and as so modified the judgment should be affirmed.