People v Williams

People v Williams 2009 NY Slip Op 08875 [68 AD3d 414] December 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Kevin Williams, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Robert Budner of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), entered February 4, 2008, convicting defendant, after a jury trial, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a term of 1 to 3 years, unanimously affirmed.

The court properly admitted evidence that defendant refused to take a breathalyzer test (see People v Thomas, 46 NY2d 100 [1978]). The evidence established that defendant did, in fact, refuse, in that he would not take the test unless the police complied with a precondition that was unacceptable under the circumstances. In any event, any error in admitting the evidence was harmless in view of the overwhelming evidence of intoxication, independent of the refusal (see People v Crimmins, 36 NY2d 230 [1975]). Concur—Mazzarelli, J.P., Sweeny, Catterson, Freedman and Roman, JJ.