People v. Demko

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 18, 1977, convicting him of two counts of criminally negligent homicide, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. Although defendant had been arrested for driving while intoxicated he was never convicted on that charge and, in fact, the charge had been dismissed prior to his trial on the instant indictment. Accordingly, it was gross error to admit evidence that defendant had been arrested for driving while intoxicated, and this error was compounded by the prosecutor’s reference thereto on summation (see People v Rivera, 26 NY2d 304, 307; People v Gagliardi, 38 AD2d 733; People v Prager, 30 AD2d 848; People v Garcia, 19 AD2d 601). In addition, it was error to allow the prosecutor, during summation, to express his personal belief that defendant was guilty of the crimes charged (see People v Jones, 47 AD2d 761). The cumulative effect of these errors was to deprive defendant of a fair trial, and the conviction must accordingly be reversed (People v Crimmins, 36 NY2d 230, 238). We note that the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law (allowing the introduction of evidence of a defendant’s refusal to submit to a chemical test to determine the alcoholic content of his blood) has recently been upheld in People v Thomas (46 NY2d 100). Defendant’s claim of error in regard to evidence introduced pursuant to subdivision 4 of section 1194 is without merit. Damiani, J. P., O’Connor and Hargett, JJ., concur.