Opinion
No. 570554/16.
12-23-2016
The PEOPLE of the State of New York, Appellant, v. Donald ODUM, Defendant–Respondent.
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 A.D.3d 551, 552 [2013], lv denied 22 N.Y.3d 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 A.D.3d 1207 [2005] ; People v. Ellis, 190 Misc.2d 98 [2001], affd 309 A.D.2d 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.