Appeal from judgments of the Justice Court of the Town of Riverhead, Suffolk County (Allen M. Smith, J.), rendered February 5, 2007. The judgments convicted defendant, upon jury verdicts, of aggravated unlicensed operation of a motor vehicle in the second degree, driving while ability impaired, refusal to submit to a breath test, operating an uninsured motor vehicle, driving an unregistered motor vehicle, failing to maintain lane, and driving a motor vehicle with mismatched and/or switched license plates.

Judgments convicting defendant of aggravated unlicensed operation of a motor vehicle in the second degree, driving while ability impaired, operating an uninsured
motor vehicle, driving an unregistered motor vehicle, failing to maintain lane and driving a motor vehicle with mismatched and/or switched license plates affirmed.

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

Upon this appeal, defendant contends that the judgment convicting him of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) was not supported by legally sufficient evidence to establish his guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence. Defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to establish his guilt of driving while ability impaired (see CPL 470.05 [2]; People v Hines, 97 NY2d 56, 61 [2001]). In any event, the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt thereof. Moreover, upon our review of the evidence in light of the elements as charged at the time of trial, we are satisfied that the verdict of guilty with respect to said charge was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633 [2006]).

We note that defendant was also convicted of "refusal to take a breath test." Though the [*2]accusatory instrument refers to Vehicle and Traffic Law § 1194 (3), that statute neither compels a person who is arrested for driving while intoxicated to submit to a "breath test," nor deems the failure to do so a criminal offense (see People v Ashley, 15 Misc 3d 80, 83 [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the judgment convicting defendant of refusal to take a breath test must be reversed, and the sentence imposed thereunder vacated.

We find defendant's remaining contentions either without merit or unpreserved for appellate review.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.