It is hereby ordered that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of refusal to submit to a breath test and dismissing count 16 of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while intoxicated (DWI) as a class D felony (Vehicle and Traffic Law §§ 1192[3]; 1193[1][c][ii]), unlawful...
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