dissent in a memorandum by Kupferman, J. P., as follows: I agree with the Trial Justice and would affirm the dismissal of the indictment, pursuant to CPL 290.10, on the ground of legal insufficiency of the trial evidence.
Initially, the decedent had been placed in a straitjacket pursuant to a physician’s direction. As the majority opinion makes clear, the decedent’s behavior made it difficult for any of the medical personnel to be other than uncivil. The restraining action taken by the defendant, while not to be commended, is nonetheless understandable.
Defendant’s conviction for criminally negligent homicide required proof of criminal negligence (Penal Law § 125.10). The conviction for manslaughter in the second degree required evidence of recklessness (Penal Law § 125.15). It cannot be said that there was a failure to perceive the risks or disregard of the risk (see, People v Warner-Lambert Co., 51 NY2d 295, 302, 303, cert denied 450 US 1031) in view of the obvious need for some kind of action. That the action taken may have been insensitive does not make it criminal. (See, People v Futterman, 86 AD2d 70.)
Inasmuch as the indictment was dismissed prior to sentencing, we do not have the power to vacate the conviction in the interest of justice or because the conviction was against the *515weight of the evidence (CPL 330.30 [1]; see, People v Colon, 65 NY2d 888). However, I do not reach those questions because there is a sufficient basis for the trial court’s determination under CPL 290.10.