concurs in part and dissents in part, with the following memorandum. In my opinion, the People have failed to sustain their burden of proving, beyond a reasonable doubt, defendant’s guilt of the crime of manslaughter in the second degree. Subdivision 1 of section 125.15 of the Penal Law provides that a person is guilty of manslaughter in the second degree (as pertinent to the charges herein) when he recklessly causes the death of another. “A person *575acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law, § 15.05, subd 3; emphasis added). The risk under the facts of the case at bar was that defendant’s conduct of swerving out and attempting to pass to the left of the van in front of him while driving at an excessive rate of speed could result in the death of another. It is in this context that, in order to establish defendant’s guilt of the crime of manslaughter in the second degree, the People were required to establish beyond a reasonable doubt that he possessed the necessary culpable mental state — that he was aware of and consciously disregarded a substantial and unjustifiable risk that his action might cause the death of another (see People v Montanez, 41 NY2d 53). The only evidence as to the defendant’s mental state at the time of the incident was his testimony that he was generally familiar with the area in which the accident occurred. In my view, this evidence was, without more, insufficient from which to infer that defendant was aware of and consciously disregarded the existence of the safety zone and the possibility that there might be pedestrians standing at that location when he blindly attempted to pass the vehicle in front of him. While I am satisfied that this evidence is sufficient to sustain a conviction for the crime of criminally negligent homicide — that is to say that defendant failed to perceive a substantial and unjustifiable risk that his actions might cause the death of another (People v Montanez, supra; People v Haney, 30 NY2d 328; Penal Law, § 15.05, subd 4; § 125.10) — I am unable to conclude on this record that the defendant possessed the necessary culpable mental state to have committed the crime of manslaughter in the second degree. Accordingly, I would reduce the convictions for manslaughter in the second degree to criminally negligent homicide and remit the matter to Criminal Term for resentencing (CPL 470.15, subd 2, par [a]; see People v Dowling, 42 AD2d 958, affd 37 NY2d 913). In all other respects, I concur in the majority’s modification.