Opinion
No. 1605.
December 1, 2009.
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.
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.
Before: Mazzarelli, J.P., Sweeny, Catterson, Freedman and Roman, JJ.
The court properly admitted evidence that defendant refused to take a breathalyzer test ( see People v Thomas, 46 NY2d 100 ). 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).