Dutchess County Public Defender (Thomas N. N. Angell. Esq.), for appellant. District Attorney Dutchess County (Kirsten A. Rappleyea, Esq.), for respondent.

Appeal from two judgments of the Justice Court of the Town of Wappinger, Dutchess County (Carl S. Wolfson, J.), rendered June 19, 2014. The judgments convicted defendant, upon jury verdicts, of common-law driving while intoxicated and refusing to submit to a breath test, respectively.

ORDERED that the judgment convicting defendant of common-law driving while intoxicated is reversed, on the facts, the accusatory instrument charging that offense is dismissed, and the fine and surcharge therefor, if paid, are remitted; and it is further,

ORDERED that the judgment convicting defendant of refusing to submit to a breath test is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument charging that "offense" is dismissed, and the fine and surcharge therefor, if paid, are remitted.

In two separate simplified informations, defendant was charged with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and refusing to submit to a breath test (Vehicle and Traffic Law § 1194 [1] [b]), respectively. Following a jury trial, defendant was found guilty of both charges. On appeal, defendant contends that she was denied the effective assistance of counsel, and that the evidence with respect to her conviction of common-law driving while intoxicated was legally insufficient and the verdict against the weight of the evidence because the People failed to provide evidence that alcohol had diminished her ability to operate a vehicle.

At trial, a New York State trooper testified that, upon responding to a dispatch of a fight between two females in the parking lot of an animal hospital, she had observed defendant sitting in the driver's seat of a car with her hands on the steering wheel, the key in the ignition, and the motor running. The trooper further testified that she noticed the odor of an alcoholic beverage on defendant's breath, that defendant's speech was slurred, and that defendant admitted to the trooper that she had consumed "a few" alcoholic beverages. The trooper conceded that, in her supporting deposition, she had stated that she had first observed defendant near the vehicle. Moreover, the trooper had not checked the box on the deposition form to indicate that defendant "was at the wheel"; she had not checked the box to indicate that the engine was running; and the trooper's case report stated that she had observed defendant "attempting to get into the driver's seat." The [*2]trooper further testified that defendant refused both to perform field sobriety tests and to take a field breath test, and, at the state trooper barracks, defendant repeatedly refused to submit to a chemical breath test. An employee of the animal hospital testified on behalf of the People that he had observed defendant's car drive into the parking lot, at which time the car was being driven normally, and the car had been parked with no issue. After defendant had left the hospital, the witness called 911 when he observed defendant and another woman fighting in the parking lot. Another employee of the animal hospital, who did not testify at trial, also called 911 regarding the fight. The recordings of the 911 calls were admitted into evidence.

Upon a review of record, we find that the guilty verdict was against the weight of the evidence in that the evidence does not provide a sufficient basis from which to infer a state of intoxication, beyond a reasonable doubt, inasmuch as there are "insufficient additional indicia that the alcohol actually diminished [defendant's] ability to operate a motor vehicle in a reasonable and prudent fashion to the degree consistent with intoxication" (People v Grennon, 36 Misc 3d 33, 36 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). Accordingly, the judgment convicting defendant of common-law driving while intoxicated is reversed and the accusatory instrument charging that offense is dismissed.

With respect to defendant's conviction of refusing to submit to a breath test, we note that this court has repeatedly held that the refusal to submit to a breath test pursuant to Vehicle and Traffic Law § 1194 (1) (b) is not a cognizable offense (see People v Carron, 51 Misc 3d 135[A], 2016 NY Slip Op 50555[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v McMahon, 43 Misc 3d 140[A], 2014 NY Slip Op 50812[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Atkinson, 42 Misc 3d 139[A], 2014 NY Slip Op 50169[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). Accordingly, the judgment convicting defendant of refusing to submit to a breath test is reversed and the accusatory instrument charging that "offense" is dismissed.

Marano, P.J., Tolbert and Brands, JJ., concur.