Supreme Court, Appellate Term, Second Department, March 2, 2007

APPEARANCES OF COUNSEL

Legal Aid Society, Riverhead (Robert C. Mitchell and Alfred J. Cicale of counsel), for appellant. Thomas J. Spotta III, District Attorney, Riverhead (Michael J. Brennan of counsel), for respondent.

Memorandum.

Judgment convicting defendant of refusal to submit to a breath test reversed on the law and as a matter of discretion in the interest of justice, sentence imposed thereunder vacated and accusatory instrument dismissed.{**15 Misc 3d at 82}

Judgments convicting defendant of driving while intoxicated, reckless driving and avoiding a traffic control device affirmed.

After a Huntley hearing, the People were precluded from introducing defendant's statement to Police Officer Halpin that she "had a few drinks, so what" at trial. On appeal, defendant contends that it was error for the trial court to allow cross-examination of defendant regarding said statement and rebuttal evidence concerning said statement. Contrary to defendant's contention, while oral statements which have been suppressed pursuant to CPL 710.30 may not be used as evidence-in-chief, they may be used for the purpose of impeaching the testimony of a defendant during cross-examination and on rebuttal (People v Goodson, 57 NY2d 828 [1982]; People v Rigo, 273 AD2d 258 [2000]; People v Robinson, 205 AD2d 836 [1994]; People v Connor, 157 AD2d 739 [1990]). After defendant denied drinking alcohol, the court below properly allowed defendant to be cross-examined as to whether she made the aforementioned statement to Officer Halpin for the purpose of impeaching her credibility (People v Wise, 46 NY2d 321, 326 [1978]). Moreover, we find no error in the introduction of [*2]the rebuttal testimony of Officer Halpin, after defendant denied making the statement that she "had a few drinks," since it was not extrinsic evidence relating to a collateral matter, and it was used to impeach defendant's credibility (see People v Alvino, 71 NY2d 233, 248 [1987]).

Contrary to defendant's contention, the court properly declined to suppress the evidence of defendant's refusal to submit to the breath test, since there was ample evidence before the court to support the conclusion that defendant was given clear and unequivocal warning of the effect of her refusal to submit to said test. Moreover, defendant's response, that she "ain't doing shit," and her refusal to sign or initial the alcohol drug influence report indicating her refusal to submit to the test, demonstrated that she persisted in her refusal within the ambit of the statute (see Vehicle and Traffic Law § 1194 [2] [f]; Matter of Geary v Commissioner of Motor Vehs. of State of N.Y., 92 AD2d 38, 41 [1983]; People v Strachan, NYLJ, Mar. 18, 1994, at 28, col 1 [App Term, 2d & 11th Jud Dists]).

Defendant further contends that the evidence was legally insufficient to establish guilt beyond a reasonable doubt on the ground that there was an ambiguity in Officer Halpin's testimony at the hearing and at trial. However, said contention{**15 Misc 3d at 83} was not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, the issue presented is one of credibility and the resolution thereof is primarily to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (People v Gaimari, 176 NY 84, 94 [1903]). The determination of the trier of fact is to be accorded great weight on appeal, and should not be disturbed unless clearly unsupported by the record (People v Garafolo, 44 AD2d 86, 88 [1974]). We note further, that while Officer Fitzsimmons could not identify defendant in court, the arresting officer identified defendant at trial. In addition, defendant's own testimony placed her at the scene.

Defendant contends that the prior conviction was similar in nature to the instant charge of driving while intoxicated and, thus, warranted preclusion at the Sandoval hearing. However, in our opinion, the court below clearly struck an appropriate balance between the probative value of defendant's prior crime on the issue of her credibility and the possible prejudice to her (see People v Hayes, 97 NY2d 203, 207 [2002]). The prior offense was probative of the defendant's willingness to place her interests above those of society (see People v Duffy, 36 NY2d 258, 262 [1975], cert denied 423 US 861 [1975]; People v Turner, 239 AD2d 447, 448 [1997]). Furthermore, by precluding the prosecutor from eliciting the underlying facts of the defendant's conviction and the nature of the prior offense, the court avoided any undue prejudice to her (see People v Mack, 6 AD3d 551 [2004]; People v Conway, 274 AD2d 663 [2000]; People v Ricks, 135 AD2d 844, 845 [1987]). Finally, the fact that defendant's prior conviction was more than 18 years old did not, in and of itself, require preclusion of that conviction for impeachment purposes (see People v Springer, 13 AD3d 657, 658 [2004]; People v Turner, 239 AD2d at 448; People v Carrasquillo, 204 AD2d 735 [1994]; People v Ricks, 135 AD2d at 845).

We note that defendant was also convicted of "refusal to submit to a breath test." Though the 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 [*3]test," nor deems the failure to do so to be a criminal offense. Therefore, the judgment convicting defendant of refusal to take a breath test must be reversed, and the sentence imposed thereunder vacated.{**15 Misc 3d at 84}

Tanenbaum, J., concurring in part and dissenting in part and voting to reverse the judgment convicting defendant of driving while intoxicated and order a new trial with respect to said charge: Although concurring with the majority opinion in affirming the judgments convicting defendant of reckless driving and avoiding a traffic control device, and reversing the judgment convicting defendant of refusal to submit to a breath test, a dissent is required with respect to that portion of the opinion affirming the judgment convicting defendant of driving while intoxicated. The court below erred in admitting the statement made by defendant to the officer, after he stopped her vehicle, that she "had a few drinks, so what," since this statement had been precluded on the ground that the People failed to provide notice of their intention to offer the statement at trial pursuant to CPL 710.30. Statements precluded from admission into evidence pursuant to CPL 710.30 may be used for the purpose of impeaching the testimony of a defendant during cross-examination (see People v Goodson, 57 NY2d 828 [1982]; People v Rigo, 273 AD2d 258 [2000]; People v Robinson, 205 AD2d 836 [1994]; People v Connor, 157 AD2d 739 [1990]), provided defendant's direct testimony opened the door to its admission (see People v Rahming, 26 NY2d 411, 418 [1970]; People v Connor, 157 AD2d 739 [1990], supra). In this case, defendant's direct testimony never opened the door for admission of such impeachment evidence.

The court's initial Sandoval ruling permitted inquiry into defendant's 1987 conviction of driving while intoxicated without limiting the People's inquiry into the nature and facts surrounding said offense. The court thereby failed to balance the probative value of introducing evidence of the prior crime on the issue of credibility against its prejudicial effect (see People v Lewis, 31 AD3d 788 [2006]). However, before defendant testified, the court modified its ruling and limited the prosecution's inquiry to whether defendant had previously been convicted of a crime. After the initial Sandoval ruling, extensive voir dire of the jury was conducted by defense counsel regarding the weight they would give the evidence if defendant had a prior conviction for the same offense. When defendant testified at trial, there was no testimony regarding the underlying facts or the nature of the prior conviction. Nevertheless, the jury was left with the distinct impression that defendant had been convicted of a similar DWI offense due to the inquiry conducted during voir dire resulting from the initial Sandoval ruling. The jury may have improperly considered said prior conviction as evidence of{**15 Misc 3d at 85} defendant's predisposition to commit the crime charged (see People v Bennette, 56 NY2d 142, 147 [1982]; People v Barrett, 189 AD2d 879 [1993]).

Neither of the foregoing errors was harmless in view of the less than overwhelming proof of guilt (see People v Crimmins, 36 NY2d 230, 237 [1975]). Consequently, a new trial should be ordered with respect to the charge of driving while intoxicated.

Rudolph, P.J., and McCabe, J., concur; Tanenbaum, J., concurs in part and dissents in part in a separate memorandum.