People v. Lizaldo — 124 A.D.3d 432

Majority

p. 432

The People of the State of New York, Respondent, v Pedro Lizaldo, Appellant.

[998 NYS2d 380]

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.

p. 433

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]).

Concur — Sweeny, J.P., Andrias, Moskowitz, Richter and Clark, JJ.

Cases cited

People v. Smith 18 NY3d 544 N.Y. 2012-02-16 at 550 p. 433
People v. Samuels 99 NY2d 20 N.Y. 2002-11-14 at 25-26 p. 433
People v. Crimmins 36 NY2d 230 N.Y. 1975-02-25 p. 433