People v. Lizaldo , 998 N.Y.S.2d 380 ( 2015 )

People v Lizaldo (2015 NY Slip Op 00285)

People v Lizaldo

2015 NY Slip Op 00285

Decided on January 8, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 8, 2015
Sweeny, J.P., Andrias, Moskowitz, Richter, Clark, JJ.

13907

[*1] The People of the State of New York, 36362C/08 Respondent,

v

Pedro Lizaldo, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Seth L. Marvin, J. at suppression hearing; Barbara F. Newman, J. at jury trial and sentencing), rendered May 1, 2009, convicting defendant of driving while ability impaired, and imposing a fine of $500, unanimously affirmed.

The hearing court properly denied defendant's motion to preclude evidence of his refusal to take a breathalyzer test.

The record supports the court's finding that defendant effectively refused the test by knowingly and wilfully failing to follow instructions (see People v Smith, 18 NY3d 544, 550 [2012]).

The court properly exercised its discretion in declining to expand upon the Criminal Jury Instructions regarding defendant's refusal to take the test. The standard instruction sufficiently instructed the jury to consider all the surrounding facts and circumstances, and the additional language proposed by defendant concerning consciousness of guilt was unnecessary (see generally People v Samuels, 99 NY2d 20, 25—26 [2002]).

In any event, any error was harmless in view of the overwhelming evidence, independent of the refusal, that defendant drove while his ability was at least impaired by alcohol (see People v Crimmins, 36 NY2d 230 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 8, 2015

CLERK