
    (February 19, 1970)
    The People of the State of New York, Respondent, v. Alton Blair, Appellant.
   Judgment unanimously reversed on the law and facts and indictment dismissed. Memorandum: The only proof of negligence in this ease was that the accident happened on defendant’s wrong side of the road. The only testimony on intoxication was that a Deputy Sheriff smelled alcohol on defendant’s breath at the accident scene, but at no time was there any suggestion that defendant be arrested, nor was defendant requested to take a blood-alcohol test. There was no proof that defendant was not mentally and physically in full possession of his faculties. The only testimony on speed was that of the deceased’s wife who said the defendant’s ear was coming toward them fast. She made that observation at night while riding in a ear which was traveling 30 to 35 miles per hour, when the defendant was 500 feet away. The proof in this case failed to measure up to the standards of culpable negligence as defined in section 15.05 of the Penal Law. (Appeal from judgment of Onondaga Supreme Court, convicting defendant of criminally negligent homicide.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.  