People v. Cruz

Hughes, J. P.

(dissenting). I respectfully dissent and would vote to reverse the order appealed from and to reinstate the information.

Defendant was arrested on January 28, 1978 and charged with resisting arrest (Penal Law, § 205.30) and operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law, § 1192). At the preliminary hearing on February 15, 1978, Police Officer Daniel Marrone testified that he observed defendant go through a red light, and after stopping him, smelled alcohol on his breath. Defendant refused to submit to a breathalyzer test and/or a chemical…