Opinion
No. 81 KA 20-00764
03-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DHAN B. KHADKA, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND KEANE, JJ.
Appeal from a judgment of the Monroe County Court (Sam L. Valleriani, J.), rendered October 7, 2020. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated as a class D felony, and refusal to submit to a breath test.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of count 3 of the indictment and dismissing that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and refusal to submit to a breath test (§ 1194 [1] [b]). As defendant contends and the People correctly concede, refusal to submit to a breath test mandated by Vehicle and Traffic Law § 1194 (1) (b) "is not a cognizable offense for which a person may be charged or convicted in a criminal court" (People v Adams, 201 A.D.3d 1311, 1312 [4th Dept 2022], lv denied 38 N.Y.3d 1007 [2022]; see People v Alim, 204 A.D.3d 1418, 1419-1420 [4th Dept 2022], lv denied 38 N.Y.3d 1068 [2022]; People v Harris, 201 A.D.3d 1327, 1327-1328 [4th Dept 2022], lv denied 38 N.Y.3d 951 [2022]; People v Bembry, 199 A.D.3d 1340, 1342 [4th Dept 2021], lv denied 37 N.Y.3d 1159 [2022]). Inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 3 of the indictment and dismissing that count (see Alim, 204 A.D.3d at 1419-1420; Harris, 201 A.D.3d at 1327-1328). Finally, we note that the certificate of conviction must be corrected to reflect that Sam L. Valleriani, J., presided at trial and sentencing (see People v McKay, 197 A.D.3d 992, 993 [4th Dept 2021], lv denied 37 N.Y.3d 1060 [2021]).