Opinion
October 4, 1991
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Callahan, A.P.J., Denman, Green, Pine and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner refused to consent to a chemical test to determine the amount of alcohol in his blood is supported by substantial evidence. Petitioner has no constitutional right to an attorney at that stage of the proceeding (see, People v Shaw, 72 N.Y.2d 1032, 1033) and may not condition his consent to take the test on first consulting with the attorney of his choice (see, Matter of Smith v Passidomo, 120 A.D.2d 599). Here, petitioner refused to submit to the test until it was too late to administer it effectively (cf., People v Gursey, 22 N.Y.2d 224, 229). His subsequent consent was irrelevant (see, Matter of Lundin v Hults, 29 A.D.2d 581).