—[*1] Steven Banks, The Legal Aid Society, New York (Robert Budner of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), entered February 4, 2008, convicting defendant, after a jury trial, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a term of 1 to 3 years, unanimously affirmed.

The court properly admitted evidence that defendant refused to take a breathalyzer test (see People v Thomas, 46 NY2d 100 [1978]). The evidence established that defendant did, in fact, refuse, in that he would not take the test unless the police complied with a precondition that was unacceptable under the circumstances. In any event, any error in admitting the evidence was harmless in view of the overwhelming evidence of intoxication, independent of the refusal (see People v Crimmins, 36 NY2d 230 [1975]). Concur—Mazzarelli, J.P., Sweeny, Catterson, Freedman and Roman, JJ.