THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DHAN KHADKA DEFENDANT APPELLANT (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of count 3 of the indictment and dismissing that count, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and refusal to submit to a breath test (§ 1194 [1] [b]). As defendant contends and the People correctly concede, refusal to submit to a breath test mandated by Vehicle and Traffic Law § 1194 (1) (b) “is not a cognizable offense for which a person may be charged or convicted in a criminal court” (People v Adams, 201 AD3d 1311, 1312 [4th Dept 2022], lv denied 38 NY3d 1007 [2022]; see People v Alim, 204 AD3d 1418, 1419-1420 [4th Dept 2022], lv denied 38 NY3d 1068 [2022]; People v Harris, 201 AD3d 1327, 1327-1328 [4th Dept 2022], lv denied 38 NY3d 951 [2022]; People v Bembry, 199 AD3d 1340, 1342 [4th Dept 2021], lv denied 37 NY3d 1159 [2022]). Inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 3 of the indictment and dismissing that count (see Alim, 204 AD3d at 1419-1420; Harris, 201 AD3d at 1327-1328). Finally, we note that the certificate of conviction must be corrected to reflect that Sam L. Valleriani, J., presided at trial and sentencing (see People v McKay, 197 AD3d 992, 993 [4th Dept 2021], lv denied 37 NY3d 1060 [2021]).

Entered: March 15, 2024

Ann Dillon Flynn

Clerk of the Court