I respectfully dissent.
The essence of the crime of criminally negligent homicide, in the language of the Court of Appeals in People v Haney (30 NY2d 328, 334-335) is "the failure to perceive the risk in a situation where the offender has a legal duty of awareness. It, thus, serves to provide an offense applicable to conduct which is obviously socially undesirable. '[It proscribes] conduct which is inadvertent as to risk only because the actor is insensitive to the interests and claims of other persons in society.’ (Model Penal Code, Tent. Draft No. 9, supra, at p. 53.) The Legislature, in recognizing such conduct as criminal, endeavored to stimulate people towards awareness of the potential consequences of their conduct and influence them to avoid creating undesirable risks. (See Wechsler and Michael, A Rationale of the Law of Homicide, 37 Col. L. Rev. 701, 749-751; 64 Col. L. Rev. 1469, 1538; Model Penal Code, Tent. Draft No. 4, supra, at pp. 126-127.)”
As stated in People v Haney (supra, p 335), it is ordinarily left to the trier of the facts to determine whether under the circumstances of the particular conduct in question "the act or acts causing death involved a substantial and unjustifiable risk, and whether the failure to perceive it was such as to constitute a gross deviation from the standard of care which a reasonable man would have observed under the same circumstances”.
In my opinion, there is in this record ample evidence from which a jury could have concluded that defendant, after consuming alcoholic beverages, drove her automobile at night at a dangerously high rate of speed and without keeping a careful lookout past a lighted restaurant the glare from which impaired her vision and where there was a likelihood of pedestrian traffic, and that by doing so she created a substantial and unjustifiable risk; that defendant failed to perceive that risk; and that the failure to perceive it constituted a *220gross deviation from the standard of care that a reasonable person would have observed in the situation.*
To support a finding of excessive speed by the defendant, the jury had before it not only the testimony of the eyewitness that defendant’s car was "hauling ass” and going "60 miles an hour, maybe more” but . the physical evidence of high speed from the substantial damage to the automobile and the multiple fractures and massive injuries to the deceased resulting from an impact of such force as to sever the aorta in three places, wrench the right leg completely away from the pelvis and propel deceased’s body a distance of 141 feet from the point of impact (see Malloy v Trombley, 50 NY2d 46, 51, regarding evidénce of tremendous impact as indicating a high rate of speed), as well as defendant’s admissions on cross-examination and in her statement to the police that she was in a hurry and that she did not know how fast she was traveling. Based on defendant’s own statements, the jury could have inferred that from her frequent trips past the restaurant she was either aware or should have been aware of the facts that the glare from the restaurant would reduce her ability to see and that there was a likelihood that there would *221be parked cars and pedestrian traffic on the highway in front of the restaurant. Further, defendant’s testimony that she did not see the cars which were parked on the highway, did not observe the two pedestrians until she was 40 feet away, heard no noise from the impact, saw nothing hit the windshield despite the extensive damage it sustained, and that she was not immediately aware that she had hit someone would, taken together, support a conclusion by a trier of the facts either that defendant’s senses and powers of observation were impaired or that she was not paying attention and keeping a careful lookout.
The jury could have inferred solely from defendant’s conduct under the circumstances that she must have been oblivious to the substantial risks she was creating by driving her automobile in the manner described. There is, moreover, direct evidence that defendant failed to perceive these risks; i.ei, her testimony that she saw no "problem at all in getting by” the pedestrians when she saw them for the first time in front of her car at a distance of 40 feet and that she did not sound her horn or apply her brakes but "just swerved over a little bit” to the left. I cannot agree with the majority that, as a matter of law, defendant’s failure to perceive the risks did not constitute a gross deviation from the ordinary standard of care held by one who shares the community’s general sense of right and wrong (see People v Haney, 30 NY2d 328, 335, supra). In my opinion, it was for the jury to " 'evaluate the actor’s failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned.’ (Model Penal Code, Tent. Draft No. 4, [April 25, 1955], at p. 126; see, also, Moreland, A Re-Examination of the Law of Homicide in 1971: The Model Penal Code, 59 Ky. L. J. 788, 828.)” (People v Haney, supra, p 335.)
Finally, I must disagree with the majority’s reliance on the emergency rule. First, the emergency doctrine was not charged; nor was there any request for such charge. Second, the emergency, if there was one, was in large measure the product of defendant’s own conduct in driving too fast under the prevailing conditions without keeping a sufficiently careful lookout. Under such circumstances, the rule is inapplicable (see McAllister v Adam Packing Corp., 66 AD2d 975; Kinsfather v Grueneberg, 47 AD2d 789, 790). Third, the gravamen of the charge against defendant does not lie in her negligent actions or omissions after she recognized the emergency but *222rather in her failure to perceive the risks in operating her automobile under the prevailing circumstances in a manner which contributed to the emergency. The emergency rule, even if applied, could not exonerate her from criminal liability for her pre-emergency failures and omissions.
Cardamone, J. P., Callahan and Moule, JJ. concur with Simons, J.; Hancock, Jr., J., dissents in an opinion.
Judgment modified, on the law and facts, and as modified affirmed, in accordance with opinion by Simons, J.
The court, in its main charge, put the issue to the jury in part as follows: "What the ordinary careful prudent person under the circumstances which Miss Beiter found herself, driving down that road that time of day, being familiar with the road, being familiar with the Landmark Inn, going at the speed she was going in the condition in which she was, would the ordinary careful and prudent person enter into that situation? * * * Was her action in proceeding into that situation, not realizing that a risk existed, of being confronted with people in the highway * * * and the ordinary careful and prudent person would have realized that that risk existed and her failure to perceive, if she did fail to perceive, constituted a gross deviation from the conduct that an ordinary careful and prudent person would take. Those are what you are going to have to answer here in determining whether or not she was criminally negligent.” And in two subsequent charges given in response to the jury’s requests for further explanations of the crime of criminally negligent homicide the court stated: "Again, as I said, the risk the criminally negligent person takes must be so extreme and serious and the fact that she did not realize the risk was there proves that she was grossly careless in contrast to deviating from conduct that a reasonable person would have. Would a reasonable person knowing the Landmark Inn was there *• * * and that people crossed the road from their cars to and from the Landmark Inn * * * drive into and through that area in the manner in which she did or as you find she did”? and further: "Was there a real, important risk and an inexcusable risk that someone would be injured or killed if she drove through that area, depending upon how you find that she did drive through it relating, of course, to speed, whether or not her condition was affected by alcohol, the nature of the highway, not deviating from her path, if she didn’t deviate from it?” There were no exceptions and defendant made no objections to the charge and no requests. Nor does she take issue with any part of the charge on appeal.