| People v Rosa |
| 2013 NY Slip Op 08826 [112 AD3d 551] |
| December 31, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert G. Rosa, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J., at hearing; NicholasIacovetta, J., at jury trial and sentencing), rendered November 22, 2011, convictingdefendant of vehicular assault in the second degree and leaving the scene of an incidentwithout reporting, and sentencing him, as a second felony offender, to an aggregate termof 1½ to 3 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The element of serious physical injury (Penal Law§ 10.00 [10]) was established by evidence that two years after defendant hit herwith his car, the victim was still experiencing pain in her wrist and back, which limitedthe physical activities in which she could engage. This constituted protracted impairmentof health and protracted impairment of the function of a bodily organ, thus constitutingserious physical injury (seePeople v Corbin, 90 AD3d 478 [1st Dept 2011], lv denied 19 NY3d 972[2012]; People v Graham, 297 AD2d 579 [1st Dept 2002], lv denied 99NY2d 535 [2002]).
Because more than two hours had passed since defendant's arrest, the officer whoadministered the breathalyzer test should not have advised defendant that if he refused totake the test, his driver's license would be suspended and the refusal could be usedagainst him in court. Nevertheless, considering the record as a whole, the court properlyconcluded that defendant's consent to the test was voluntary. Most significantly, withoutany coercive conduct by the officer, defendant first agreed to take the test before theofficer gave the inappropriate warnings.
The court properly denied defendant's request for a pretrial hearing to determinewhether the test, administered more than two hours after the arrest, was sufficientlyreliable to be admissible. Although there are trial court opinions to the contrary (see e.g. People v Holbrook, 20Misc 3d 920 [Sup Ct, Bronx County 2008]), we agree with the analysis set forth inPeople v D.R. (23 Misc 3d605 [Sup Ct, Bronx County 2009]), which held that such a hearing is not [*2]required. While a defendant may challenge the reliability ofthe test at trial, we see no reason to conduct a pretrial hearing every time testing occursmore than two hours after arrest. Concur—Mazzarelli, J.P., Andrias, DeGrasse,Freedman and Gische, JJ.