Appeal from judgments of the Justice Court of the Town of Riverhead, Suffolk County (Allen M. Smith, J.), rendered on February 21, 2006. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated and "refusal to submit to a breath test" in violation of Vehicle and Traffic Law section 1194 (2).

Judgment convicting defendant of "refusal to submit to a breath test" reversed on the law, sentence imposed thereunder vacated and accusatory instrument dismissed.

Judgment convicting defendant of driving while intoxicated affirmed.

Prior to trial, the court held a hearing to determine the admissibility of testimony that defendant refused to take a chemical test at the precinct (see Vehicle and Traffic
Law § 1194 [2]). At the close of the police officer's direct testimony at the hearing, defense counsel moved to dismiss the charges on the ground that the prosecution had offered no evidence of the lawfulness of the stop of defendant's vehicle that ultimately led to his refusal to take the chemical test. We note that defendant's motion should properly have been for the suppression of evidence, and not for dismissal of the charges (see People v Asher, 16 Misc 3d 89, 90 [App Term, 9th & 10th Jud Dists 2007]). In any event, contrary to defendant's contention, the trial court properly denied the motion, since it was, in effect, premature. The understanding of the parties was that the hearing up until that point had been limited to the issue of defendant's refusal to take the test, and that the issue of probable cause for the stop and the ensuing police actions would be reached at a later point in the hearing. Moreover, once he went on to elicit on cross-examination testimony tending to establish the lawfulness of the stop, defendant waived any further argument that the evidence prior to that point had been inadequate (see generally People v Hines, 97 NY2d 56, 61 [2001]).

Defendant also contends that the hearing court erred in declining to suppress the evidence of his refusal to submit to a chemical test on the ground that the hearing evidence as a whole did [*2]not establish that the initial stop of his vehicle was lawful. This argument is without merit. After pacing defendant's car at a speed well above the local speed limit for approximately 1,000 feet, the police officer had probable cause to stop defendant for a traffic infraction, and the stop was therefore lawful (see People v White, 40 AD3d 535, 536 [2007]).

Defendant further argues that even if the initial stop was lawful, the hearing court erred in finding that there were sufficient indicia of intoxication to warrant an arrest and a request that he submit to a chemical test. This argument, too, lacks merit. At the hearing, the police witness testified that, upon stopping defendant, he observed that defendant had glassy eyes, slurred speech, and the odor of alcohol on his breath. Based on the foregoing, the police officer had adequate grounds to request that defendant submit to field sobriety tests (see People v Califano, 255 AD2d 701, 701-702 [1998]). Defendant failed successfully to complete the tests. At that point, the police officer's observations provided probable cause to arrest defendant for driving while intoxicated (see People v Schmitt, 262 AD2d 588 [1999]); hence, pursuant to Vehicle and Traffic Law § 1194, the officer was entitled to request that defendant submit to a chemical test at the precinct. Contrary to defendant's contention, the hearing court's decision to credit this witness is supported by the record, and, consequently, should not be disturbed (see People v Cooper, 38 AD3d 678, 679 [2007]).

To the extent that defendant argues that the People's case-in-chief at trial was legally insufficient to establish his guilt of driving while intoxicated, when the court denies a dismissal motion at the close of the People's case, "a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People's evidence" (People v Payne, 3 NY3d 266, 273 [2004]). To the extent that defendant's argument is that the trial evidence as a whole was legally insufficient to establish his guilt of this offense, he has failed to preserve the issue (see People v Lane, 7 NY3d 888, 889 [2006]). We decline to reach the issue in the interest of justice. Were we to reach it, we would find that defendant's argument fails. The People's proof was sufficient, and, contrary to defendant's contention, proof of erratic driving is not necessary to support a conviction of driving while intoxicated (see People v Shank, 26 AD3d 812, 813 [2006]).

Finally, defendant contends that it was reversible error for the prosecutor to cross-examine him as to whether two of the police witnesses were "lying." This issue is not preserved, and we decline to reach it in the interest of justice. Were we to reach the issue, we would find that any error in the prosecutor's questions was harmless, since there was overwhelming proof of defendant's guilt and there was no significant probability that the jury would have acquitted defendant had this portion of the cross-examination not taken place (see People v Mereness, 43 AD3d 473, 473-474 [2007]).

We note that defendant was convicted of "refusal to submit to a breath test." The accusatory instrument charges this offense under Vehicle and Traffic Law § 1194 (2), the provision covering "chemical" tests, including chemical breath tests. "Field" breath tests, by contrast, are covered by Vehicle and Traffic Law § 1194 (1) (b). In accordance with the provision cited on the accusatory instrument, the prosecutor's theory of guilt at trial was that defendant had refused to submit to a "chemical" breath test at the precinct, not that he had refused to submit to a "field" breath test. The court's charge, although somewhat ambiguous, ultimately directed the jury to reach its verdict with respect to a "chemical" test. Vehicle and Traffic Law § 1194 (2) neither compels a person who is arrested for driving while intoxicated to [*3]submit to a "chemical" test, nor deems the failure to do so to be a criminal offense (cf. Vehicle and Traffic Law § 1194 [1] [b] [providing that submission to a "field" breath test is, under certain circumstances, mandatory]). Therefore, the judgment convicting defendant, in effect, of the non-existent offense of refusal to take a chemical breath test pursuant to Vehicle and Traffic Law § 1194 (2) must be reversed, and the sentence imposed thereunder vacated (see People v Ashley, 15 Misc 3d 80, 83 [App Term, 9th & 10th Jud Dists 2007]; cf. People v Cunningham, 95 NY2d 909, amended 95 NY2d 949 [2000] [defendant convicted of violating Vehicle and Traffic Law § 1194 [1] [b]).

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: March 21, 2008