MEMORANDUM:

The order of the Appellate Term should be modified by vacating the conviction for driving while intoxicated and remitting to City Court for further proceedings in accordance with this Memorandum, and, as so modified, affirmed. Defendant was convicted after a bench trial of violating Vehicle and Traffic Law §§ 1192(3) and 1194(1)(b). In reaching a verdict on the section 1192(3) charge, the Trial Judge applied a definition of intoxication which improperly lowered the prosecution's burden of proof (see, People v Cruz, , 48 NY2d 419; cf., People v Ardila, , 85 NY2d 846). Upon defendant's motion to set aside the verdict, the Judge reconsidered the evidence in light of the Cruz definition of intoxication and again found defendant guilty. The Appellate Term affirmed. The Court's reconsideration of its verdict under a different standard constituted a factual determination that “comes too late and exceeds the scope of [the court's] authority” (People v Maharaj, , 89 NY2d 997, 999; People v Carter, , 63 NY2d 530). To allow the second verdict to stand would permit the Trial Judge to engage in post-verdict fact-finding that would not be possible in a jury trial, thereby according “less finality to the verdict of a Trial Judge when sitting as [the trier of fact] than to a jury verdict” (People v Carter, supra, at 539; see also, CPL 320.20[4]). Accordingly, defendant's conviction for driving while intoxicated should be vacated and a new trial held on that charge. Defendant's objection, raised for the first time at summation, to the admission into evidence of his refusal to take the breathalyzer test was untimely (CPL 470.05; see, People v Martin, , 50 NY2d 1029, 1031). Therefore, no basis exists to disturb his section 1194(1)(b) conviction.