People v. Williams

Full title: The PEOPLE, etc., respondent, v. Phillip WILLIAMS, appellant.

Court: Supreme Court, Appellate Division, Second Department, New York.

Date published: Oct 17, 2012

99 A.D.3d 955 (N.Y. App. Div. 2012)

952 N.Y.S.2d 281

2012 N.Y. Slip Op. 6982

Opinion

2012-10-17

The PEOPLE, etc., respondent, v. Phillip WILLIAMS, appellant.

Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Emma Brown–Bernstein on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

PETER B. SKELOS

Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Emma Brown–Bernstein on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered January 13, 2011, convicting him of operating a motor vehicle while intoxicated, upon a jury verdict, and imposing sentence. The appeal brings upon for review the denial, after a hearing (Jacobson, J.), of the defendant's motion to suppress evidence of his refusal to submit to a breathalyzer test.

ORDERED that the judgment is reversed, on the law, the defendant's motion to suppress evidence of his refusal to submit to a breathalyzer test is granted, and a new trial is ordered.

The defendant correctly contends that the hearing court erred in denying his motion to suppress evidence of his refusal to take a breathalyzer test, as the officer administering the test did not advise the defendant that his refusal could be used against him at a trial, proceeding, or hearing resulting from the arrest ( seeVehicle and Traffic Law § 1194[2] [f]; People v. Guzman, 247 A.D.2d 552, 552, 668 N.Y.S.2d 918). Moreover, while such error is subject to a harmless error analysis ( see People v. Guzman, 247 A.D.2d at 552, 668 N.Y.S.2d 918), the error here was not harmless. Where a nonconstitutional error is involved, the error is harmless where the evidence of the defendant's guilt is overwhelming and there is no significant probability that the error contributed to the conviction ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Duggins, 1 A.D.3d 450, 454, 766 N.Y.S.2d 702,affd.3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942). The evidence here was not overwhelming, particularly in the absence of the evidence of the defendant's refusal to submit to a breathalyzer test. Additionally, the People repeatedly relied on the defendant's refusal to take the breathalyzer test as evidence that he was indeed intoxicated. Under these circumstances, the judgment must be reversed, the defendant's motion granted, and the matter remitted to the Supreme Court, Kings County, for a new trial.