People v. Guzman

247 A.D.2d 552, 668 N.Y.S.2d 918, 1998 N.Y. App. Div. LEXIS 1457

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered September 22, 1995, convicting him of operating a motor vehicle while under the influence of alcohol pursuant to Vehicle and Traffic Law § 1192 (1), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant’s motion to suppress evidence of his refusal to take a breathalyzer test.

Ordered that the judgment is affirmed.

As the defendant correctly contends, the hearing court erred in denying his motion to suppress testimony of his refusal to take a breathalyzer test, as the officer administering the test did not advise the defendant that his refusal could be used against him at a trial, proceeding, or hearing resulting from the arrest and that it could result in the revocation of his driver’s license. However, this error was harmless in light of the overwhelming evidence of the defendant’s guilt (see, People v Reding, 167 AD2d 716, 717; cf., People v Boone, 71 AD2d 859, 860).

The defendant’s contention that police officers were permitted to give expert testimony as to his intoxication, is without merit. The officers did not testify as experts, but as lay witnesses (see, People v Cruz, 48 NY2d 419, 428; Renzo v Tops Friendly Mkts., 136 AD2d 952, 953).

Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.