| People v Marietta |
| 2009 NY Slip Op 03543 [61 AD3d 997] |
| April 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Marietta, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisnerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg,J.), rendered March 28, 2008, convicting him of criminally negligent homicide, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court,Kings County, for further proceedings pursuant to CPL 460.50 (5).
The defendant's contention that the results of a breathalyzer test should have been suppressedis without merit. Vehicle and Traffic Law § 1194 provides, inter alia, that any person whooperates a motor vehicle in this state shall be deemed to have given consent to certain tests,including breath tests, for the purpose of determining blood alcohol content, as long as such testis administered by or at the direction of a police officer having reasonable grounds to believesuch person was operating a motor vehicle while intoxicated or impaired by consumption ofalcohol and within two hours after such person has been placed under arrest for any suchviolation (see Vehicle and Traffic Law § 1194 [2] [a] [1]; see also Vehicleand Traffic Law § 1192). Here, the defendant was arrested at 6:10 a.m., and the test atissue was administered at 7:44 a.m., less than two hours later. Thus, the test was administeredwithin the time period contemplated by Vehicle and Traffic Law § 1194. A reasonableperson in the defendant's position, [*2]innocent of any crime,would not have believed that he or she was under arrest before 6:10 a.m. (see generallyPeople v Yukl, 25 NY2d 585, 589 [1969]; People v Burry, 52 AD3d 856, 859 [2008]). The period of time thedefendant spent waiting for the arrival of the arresting officer was not unreasonable under thecircumstances presented. In any event, even if the test had not been administered within twohours after the defendant's arrest, the results were still admissible into evidence. The defendantwas asked to take the test, and he expressly consented. The two-hour limitation does not applywhere the defendant expressly and voluntarily consents to the administration of the breath test(see People v Atkins, 85 NY2d 1007, 1008-1009 [1995]; cf. People v Casimiro,308 AD2d 456, 456 [2003]). We find that the defendant's consent to this test was voluntaryunder the totality of the circumstances (see generally People v Dobson, 285 AD2d 737,738 [2001]). Although the defendant was not expressly advised that he had a right to refuse totake the test, there is no requirement that a defendant be so advised, and the absence of such anadvisement does not negate consent otherwise freely given (cf. id.; People v Auxilly, 173AD2d 627, 628 [1991]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,is without merit. Santucci, J.P., Florio, Covello and Dickerson, JJ., concur. [See 18 Misc3d 1109(A), 2007 NY Slip Op 52476(U).]