— Judgment, insofar as appealed from, unanimously reversed, on the law, defendant’s motion granted, and first count of indictment dismissed. Memorandum: Accepting the evidence most favorable to the prosecution, we conclude that the prosecution failed to meet its burden as a matter of law and that defendant’s motion for a dismissal at the conclusion of the trial should have been granted. (Appeal from judgment of Monroe County Court, Connell, J. — driving while intoxicated.) Present — Doerr, J. P., Boomer, Balio, Lawton and Schnepp, JJ.