| People v Williams |
| 2012 NY Slip Op 06982 [99 AD3d 955] |
| October 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Phillip Williams, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel), for respondent.
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 ajury 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 abreathalyzer test.
Ordered that the judgment is reversed, on the law, the defendant's motion to suppressevidence 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 tosuppress evidence of his refusal to take a breathalyzer test, as the officer administering the testdid not advise the defendant that his refusal could be used against him at a trial, proceeding, orhearing resulting from the arrest (see Vehicle and Traffic Law § 1194 [2] [f];People v Guzman, 247 AD2d 552, 552 [1998]). Moreover, while such error is subject toa harmless error analysis (see People v Guzman, 247 AD2d at 552), the error here wasnot harmless. Where a nonconstitutional error is involved, the error is harmless where theevidence of the defendant's guilt is overwhelming and there is no significant probability that theerror contributed to the conviction (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Duggins, 1 AD3d450, 454 [2003], affd 3 NY3d 522 [2004]). The evidence here was notoverwhelming, particularly in the absence of the evidence of the defendant's refusal to submit toa breathalyzer test. Additionally, the People repeatedly relied on the defendant's refusal to takethe breathalyzer test as evidence that he was indeed intoxicated. Under these circumstances, thejudgment must be reversed, the defendant's motion granted, and the matter remitted to theSupreme Court, Kings County, for a new trial. Skelos, J.P., Dickerson, Hall and Roman, JJ.,concur.