Opinion
May 11, 1987
Appeal from the County Court, Orange County (Bryne, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for further proceedings pursuant to CPL 460.50 (5).
Given the facts of this case, the defendant could properly question on appeal the constitutionality of the statute under which he entered his guilty plea (see, People v. Pelchat, 62 N.Y.2d 97, 108; People v. Lee, 58 N.Y.2d 491, 494). However, the defendant's contention that Penal Law § 120.03 is unconstitutional because it requires a defendant to act with criminal negligence and not a more highly culpable mental state (see, Penal Law § 15.05) is incorrect. It is not violative of the Constitution of the United States to base a crime upon a finding that a defendant acted with criminal negligence (see, Penal Law § 15.05; People v. Kealey, 33 N.Y.2d 818, mot to amend remittitur granted 33 N.Y.2d 897, cert denied 415 U.S. 920; People v. Ebasco Servs., 77 Misc.2d 784, 786). Mangano, J.P., Niehoff, Weinstein and Kunzeman, JJ., concur.