Opinion
03-15-2024
The PEOPLE of the State of New York, Respondent, v. Dhan B. KHADKA, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Sam L. Valleriani, J.), rendered October 7, 2020. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated as a class D felony, and refusal to submit to a breath test.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of count 3 of the in- dictment and dismissing that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and refusal to submit to a breath test (§ 1194 [1] [b]). As defendant contends and the People correctly concede, refusal to submit to a breath test mandated by Vehicle and Traffic Law § 1194 (1) (b) "is not a cognizable offense for which a person may be charged or convicted in a criminal court" (People v. Adams, 201 A.D.3d 1311, 1312, 161 N.Y.S.3d 613 [4th Dept. 2022], lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 357, 188 N.E.3d 549 [2022]; see People v. Alim, 204 A.D.3d 1418, 1419-1420, 167, N.Y.S.3d 679 [4th Dept. 2022], lv denied 38 N.Y.3d 1068, 171 N.Y.S.3d 461, 191 N.E.3d 413 [2022]; People v. Harris, 201 A.D.3d 1327, 1327-1328, 161 N.Y.S.3d 615 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 470, 185 N.E.3d 991 [2022]; People v. Bembry, 199 A.D.3d 1340, 1342, 157 N.Y.S.3d 201 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 710, 713, 181 N.E.3d 1138, 1141 [2022]). Inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 3 of the indictment and dismissing that count (see Alim, 204 A.D.3d at 1419-1420, 167 N.Y.S.3d 679; Harris, 201 A.D.3d at 1327-1328, 161 N.Y.S.3d 615). Finally, we note that the certificate of conviction must be corrected to reflect that Sam L. Valleriani, J., presided at trial and sentencing (see People v. McKay, 197 A.D.3d 992, 993, 153 N.Y.S.3d 347 [4th Dept. 2021], lv denied 37 N.Y.3d 1060, 154 N.Y.S.3d 639, 176 N.E.3d 675 [2021]).