People v. Monahan , 744 N.Y.S.2d 879 ( 2002 )

—Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Copertino, J.), rendered September 7, 1999, convicting him of operating a motor vehicle under the influence of alcohol as a felony, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

“It is well settled that a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a [breathalyzer] test, if he [or she] requests the assistance of counsel and no danger of delay is posed” (People v Kearney, 261 AD2d 638; see People v Gursey, 22 NY2d 224, 229; People v O’Rama, 162 AD2d 727, read on other grounds 78 NY2d 270). However, a defendant does not have the “absolute right to refuse the test until a lawyer reaches the scene” (People v Gursey, supra at 229). If a defendant refuses to take a breathalyzer test, evidence of such refusal is admissible at trial if the defendant was given clear and unequivocal warning of the effect of the refusal to submit to the test (see People v Thomas, 46 NY2d 100, 108).

The defendant’s contention that his request to speak to an attorney should not be construed as a refusal to consent to a breathalyzer test is without merit (see Matter of Boyce v Commissioner of N.Y. State Dept. of Motor Vehicles, 215 AD2d 476, 477; People v Peabody, 206 AD2d 754, 755; Matter of O’Brien v Melton, 61 AD2d 1091). Moreover, the record indicates that the defendant was accurately apprised of the consequences of his refusal to submit to the breathalyzer test (see People v Thomas, supra).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Santucci, J.P., McGinity, Luciano and Adams, JJ., concur.