People v Ayala

People v Ayala 2011 NY Slip Op 06585 Decided on September 27, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 27, 2011
Andrias, J.P., Sweeny, Moskowitz, Richter, Román, JJ.
5569

[*1]The People of the State of New York, Dkt. 66395C/06 Respondent,

v

Margarita Ayala, Defendant-Appellant.



 
Steven Banks, The Legal Aid Society, New York (Désirée
Sheridan of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jean Soo Park of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael R. Sonberg, J.), rendered May 23, 2008, convicting defendant, upon her plea of guilty, of operating a motor vehicle while under the influence of alcohol, and sentencing her to a conditional discharge and a fine of $500, unanimously affirmed.

The court properly denied defendant's motion to suppress breathalyzer test results. The two-hour limitation contained in Vehicle and Traffic Law § 1194(2)(a) applies only to deemed consent and does not apply where, as here, a defendant expressly and voluntarily consents to the test (People v Atkins, 85 NY2d 1007 [1995]). Defendant's challenge to the voluntariness of her consent is unpreserved and without merit.

The reliability of the test results was an issue for trial and was not a proper issue for the suppression hearing. By pleading guilty, defendant forfeited appellate review of that issue (see People v Parilla, 8 NY3d 654, 659 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2011

CLERK