People v McMahon

[*1] People v McMahon 2014 NY Slip Op 50812(U) Decided on May 9, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
2012-1260 OR CR

The People of the State of New York, Respondent,

against

Patrick McMahon, Appellant.

Appeal from a judgment of the Justice Court of the Town of Tuxedo, Orange County (Shawn Brown, J.), rendered April 19, 2012. The judgment convicted defendant, after a nonjury trial, of refusing to submit to a breath test.

ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.

On November 24, 2011, the People charged defendant, in separate simplified traffic informations, with speeding (Vehicle and Traffic Law § 1180 [d]) and refusal to submit to a breath test (see Vehicle and Traffic Law § 1194 [1]; [b]). Following a nonjury trial, defendant was acquitted of the speeding charge and convicted of the remaining charge. However, as this court has repeatedly held, the refusal to submit to a breath test pursuant to Vehicle and Traffic Law § 1194 (1) (b) is not a cognizable offense (see People v Atkinson, 42 Misc 3d 139[A], 2014 NY Slip Op 50169[U]; [App Term, 9th & 10th Jud Dists 2014]; People v Salerno, 36 Misc 3d 151[A], 2012 NY Slip Op 51699[U]; [App Term, 9th & 10th Jud Dists 2012]).

Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: May 09, 2014