It is hereby ordered that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of count nine of the indictment and dismissing that count, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, among other things, driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192[3]; 1193[1][c][ii]) and "refusal to take breath...
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