People v Odum (Donald)

[*1] People v Odum (Donald) 2016 NY Slip Op 51806(U) Decided on December 23, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570554/16

The People of the State of New York, Appellant,

against

Donald Odum, Defendant-Respondent.

The People appeal from (1) an order of the Criminal Court of the City of New York, New York County (Marc J. Whiten, J.), dated June 30, 2015, which granted defendant's motion to suppress evidence of his initial refusal to take a breathalyzer test and the subsequent breathalyzer test results, and (2) an order (same court and Judge), dated December 3, 2015, which, upon reargument, adhered to the prior determination.

Per Curiam.

Orders (Marc J. Whiten, J.), dated, respectively, June 30, 2015 and December 3, 2015, affirmed.

The suppression court, adopting the findings of fact and conclusions of law made by a judicial hearing officer, properly suppressed the breathalyzer test results. "Because more than two hours had passed since defendant's arrest, the officer who administered the breathalyzer test should not have advised defendant that if he refused to take the test, his driver's license would be suspended and the refusal could be used against him in court" (People v Rosa, 112 AD3d 551, 552 [2013], lv denied 22 NY3d 1202 [2014]). Inasmuch as defendant agreed to take the test only after the officer gave the "inappropriate warnings" (id.), the court properly found that defendant's consent was involuntary (see People v Skardinski, 24 AD3d 1207 [2005]; People v Ellis, 190 Misc 2d 98 [2001], affd 309 AD2d 1314 [2003]).

We have considered the People's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT

I concur I concur
Decision Date: December 23, 2016