Appeal by defendant from a judgment of the City Court, City of White Plains, Westchester County (J. Friia, J.), rendered August 19, 2002, convicting her of failing to yield the right of way at an intersection (Vehicle and Traffic Law § 1140 [b]) and imposing sentence.

Judgment of conviction unanimously reversed on the law, accusatory instrument dismissed and fine, if paid, remitted.

Defendant was charged with, and convicted of, violating Vehicle and Traffic Law § 1140 (b). The statute provides that "[w]hen two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right." While the testimony adduced at trial may have supported a conviction for failure to yield the right of way to a vehicle which is approaching so closely as to constitute an immediate hazard (see Vehicle and Traffic Law § 1142 [a]) or for failing to stop at a stop sign (see Vehicle and Traffic Law § 1172 [a]), defendant was not charged with the foregoing. Rather, because the testimony established that defendant's vehicle was the vehicle to the right when it entered the intersection, even when the evidence is viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [19831), the evidence was legally insufficient as a matter of law to establish that she violated Vehicle and Traffic Law § 1140 (b) (see e.g. People v Bell, 286 AD2d 772 [2001]).
Decision Date: November 21, 2003