Summary
In Rosa, the Appellate Division First Department held that the defendant's consent was voluntary when "considering the record as a whole," id., and did not suppress the evidence of the breath test.
Summary of this case from People v. OlmoOpinion
2013-12-31
The PEOPLE of the State of New York, Respondent, v. Robert G. ROSA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, FREEDMAN, GISCHE, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J. at hearing; Nicholas Iacovetta, J. at jury trial and sentencing), rendered November 22, 2011, convicting defendant of vehicular assault in the second degree and leaving the scene of an incident without reporting, and sentencing him, as a second felony offender, to an aggregate term of 1 1/2 to 3 years, unanimously affirmed.
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The element of serious physical injury (Penal Law § 10.00[10] ) was established by evidence that two years after defendant hit her with his car, the victim was still experiencing pain in her wrist and back, which limited the physical activities in which she could engage. This constituted protracted impairment of health and protracted impairment of the function of a bodily organ, thus constituting serious physical injury ( see People v. Corbin, 90 A.D.3d 478, 934 N.Y.S.2d 389 [1st Dept. 2011], lv. denied19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012]; People v. Graham, 297 A.D.2d 579, 747 N.Y.S.2d 171 [1st Dept. 2002], lv. denied99 N.Y.2d 535, 752 N.Y.S.2d 596, 782 N.E.2d 574 [2002] ).
Because more than two hours had passed since defendant's arrest, the officer who administered the breathalyzer test should not have advised defendant that, if he refused to take the test, his driver's license would be suspended and the refusal could be used against him in court. Nevertheless, considering the record as a whole, the court properly concluded that defendant's consent to the test was voluntary. Most significantly, without any coercive conduct by the officer, defendant first agreed to take the test before the officer gave the inappropriate warnings.
The court properly denied defendant's request for a pretrial hearing to determine whether the test, administered more than two hours after the arrest, was sufficiently reliable to be admissible. Although there are trial court opinions to the contrary ( see e.g. People v. Holbrook, 20 Misc.3d 920, 864 N.Y.S.2d 726 [Sup. Ct. Bronx County 2008] ), we agree with the analysis set forth in People v. D.R., 23 Misc.3d 605, 872 N.Y.S.2d 911 [Sup. Ct. Bronx County 2009], which held that such a hearing is not required. While a defendant may challenge the reliability of the test at trial, we see no reason to conduct a pretrial hearing every time testing occurs more than two hours after arrest.