Appeal from judgments of the Justice Court of the Town of Yorktown, Westchester County (Salvatore A. Lagonia, J.), rendered February 7, 2012. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated and refusing to submit to a field breath test, respectively.

ORDERED that the judgment convicting defendant of driving while intoxicated is affirmed; and it is further,

ORDERED that the judgment convicting defendant of refusing to submit to a field breath test is reversed, on the law, the accusatory instrument underlying this judgment of conviction is dismissed, and the fine, if paid, is remitted.

In separate simplified traffic informations, defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and refusing to submit to a field breath test (Vehicle and Traffic Law § 1194 [1] [b]), respectively. Following a nonjury trial, defendant was convicted of both charges.

In People v Salerno (36 Misc 3d 151[A], 2012 NY Slip Op 51699[U], *2 [App Term, 9th & 10th Jud Dists 2012]), this court held that a charge of refusing to submit to a breath test pursuant to Vehicle and Traffic Law § 1194 (1) (b) "does not make out a cognizable offense." Accordingly, the judgment convicting defendant of violating Vehicle and Traffic Law § 1194 (1) (b) is reversed, the accusatory instrument underlying this judgment of conviction is dismissed, and the fine, if paid, is remitted.

Defendant contends that the evidence was legally insufficient to support his conviction of driving while intoxicated by voluntary consumption of alcohol as opposed to prescription medications. However, defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since he failed to move for dismissal on this ground in the Justice Court (see CPL 470.05 [2] People v Hawkins, 11 NY3d 484, 491-492 [2008] People v Hines, 97 NY2d 56, 61 [2001] People v Gray, 86 NY2d 10 [1995]). In any event, the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), indicates that the People established defendant's guilt of driving while intoxicated beyond a reasonable doubt.

At trial, the People's witnesses testified that defendant was sleeping in his vehicle with the engine running and that, when he woke up, he had slurred speech and glassy eyes, he was unsteady on his feet, and there was an odor of an alcoholic beverage emanating from his breath. Evidence was also presented of defendant's refusal to submit to breath and blood tests and his poor performance on field sobriety tests. Defendant informed the police that he had taken three different prescription medications within six hours prior to his arrest. The police officers testified that although it was their opinions that defendant was intoxicated due to the consumption of alcohol, they could not determine whether the medications defendant had taken had affected his intoxication. Defendant's psychiatrist testified that the medications he had prescribed to defendant would cause the same indicia of intoxication observed by the police officers; however, the medications would not cause a person to have an odor of an alcoholic [*2]beverage emanating from his or her mouth. In addition, although the police initially did not indicate on their paperwork that they had detected an odor of an alcoholic beverage on defendant's person, the same night the paperwork was completed, it was amended to indicate that an odor of an alcoholic beverage had been detected on defendant's person. Moreover, defendant initially indicated on the paperwork that he had consumed an alcoholic beverage; however, the same night the paperwork was completed, defendant amended it to indicate that he had not consumed an alcoholic beverage.

In People v Van Tuyl (79 Misc 2d 262 [1974]), this court held that a conviction would lie if the proof established that intoxication was caused by drugs and alcohol. Under the facts of that case, we held that the intoxication was caused by the drugs taken rather than by the drinks the defendant had admitted consuming. In view of the evidence presented in this case, a question of fact was presented as to whether defendant's intoxication was caused by alcohol or by prescription drugs, and we see no reason to disturb the jury's factual finding in this regard (see People v Calderella, 170 Misc 2d 1044 [App Term, 9th & 10th Jud Dists 1996]).

Accordingly, the judgment convicting defendant of driving while intoxicated is affirmed.

Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: January 31, 2014