Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Desmond A. Green, J.), rendered April 29, 2009. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated. The appeal brings up for review so much of an order dated February 11, 2009 as denied, after a hearing, the branch of defendant's motion seeking to suppress evidence of defendant's refusal to submit to a chemical test.

ORDERED that the judgment is reversed, on the law, so much of an order dated February 11, 2009 as denied the branch of defendant's motion seeking to suppress
evidence of defendant's refusal to submit to a chemical test is vacated, that branch of defendant's motion is granted and the matter is remitted to the Criminal Court for a new trial.

Defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and reckless driving (Vehicle and Traffic Law § 1212). He subsequently moved to suppress evidence, which included his refusal to take a breath test. A hearing was held, after which the Criminal Court denied defendant's motion. Following a jury trial, defendant was convicted of driving while intoxicated. On appeal, defendant contends, among other things, that evidence of his refusal to take a breath test should have been precluded. We agree.
[*2]Pursuant to Vehicle and Traffic Law § 1194 (2) (f), "[e]vidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." Such "proof is received to permit the inference of consciousness of guilt, i.e., that defendant refused to take the test because of his apprehension as to whether he would pass it" (People v Smith, 18 NY3d 544, 550 [2012] [internal quotation marks and citation omitted]).

The uncontroverted evidence adduced both at the hearing and the trial indicates that, at 12:27 A.M., a police officer read defendant his Miranda rights, after which defendant declined to answer any questions. About half an hour later, another police officer asked defendant to take a chemical test, to which defendant replied "no." The officer asked defendant a second time to take the test and defendant again replied "no." The officer then provided refusal warnings to defendant, by which defendant was informed that his refusal to take the test would result in the immediate suspension, and subsequent revocation, of his license regardless of whether he was convicted of the charges, and that his refusal could be used as evidence against him at trial. When the officer, for a third time, asked defendant to take the breath test, defendant replied "not without my attorney." The officer immediately told defendant that an attorney was "not permitted," and testified that he did this because the two-hour window was closing and that this fact was unknown to defendant. However, the officer asked defendant for the name, or number, of his attorney, but defendant had neither. While the officer at this point interpreted defendant's request for an attorney as a binding refusal, the officer did not inform defendant of this fact.

Although defendant had replied "no" the first two times he was asked to take a breath test, after he was informed of the consequences of his refusal, defendant did not again state "no"; rather, he said that he would not take the test without his attorney. Defendant clearly changed his response after being informed of the consequences of his refusal to take the test. He did not continue to unequivocally state "no." Since "a reasonable motorist in defendant's position would not have understood that, unlike the prior encounters, the further request to speak to an attorney would be interpreted . . . as a binding refusal to submit to a chemical test, defendant was not adequately warned" (People v Smith, 18 NY3d at 551) of the consequences of his refusal to take the test. During the third request, the police officer should have "alerted defendant that his time for deliberation had expired and if he did not consent to the chemical test at that juncture his response would be deemed a refusal" (People v Smith, 18 NY3d at 551-552; see also People v O'Rama, 78 NY2d 270, 280-281 [1991]).
In view of the foregoing, and since it is unclear the extent to which the jury relied on the refusal's "inference of [a] consciousness of guilt" in arriving at its verdict on the driving while intoxicated charge, the judgment of conviction is reversed (People v Smith, 18 NY3d at 550, 552). Although defendant has completed his sentence, inasmuch as the charge of driving while intoxicated is not a relatively minor crime or offense (see e.g. People v Allen, 39 NY2d 916 [1976]), the matter is remitted to the Criminal Court for a new trial. In view of the foregoing, we need not reach defendant's remaining contentions.

Pesce, P.J., Rios and Aliotta, JJ, concur. [*3]
Decision Date: July 17, 2012