administration test in New York

2018Nevertheless, as Atkins instructs, the test results may still be admissible if defendant voluntarily consented to take the test because "the two-hour limitation ... has no application" when the "defendant [has] expressly and voluntarily consented to administration of the [breath] test" ( 85 N.Y.2d at 1009, 630 N.Y.S.2d 965 , 654 N.E.2d 1213 ; see *1039 Smith , 18 N.Y.3d at 548 n. 1, 942 N.Y.S.2d 426 , 965 N.E.2d 928 ). 2 The issue before us, then, is whether defendant gave his voluntary consent to the administration of the test, which generally presents a mixed question of law and fact ( see e

2018Nevertheless, as Atkins instructs, the test results may still be admissible if defendant voluntarily consented to take the test because "the two-hour limitation ... has no application" when the "defendant [has] expressly and voluntarily consented to administration of the [breath] test" ( 85 N.Y.2d at 1009, 630 N.Y.S.2d 965 , 654 N.E.2d 1213 ; see *1039 Smith , 18 N.Y.3d at 548 n. 1, 942 N.Y.S.2d 426 , 965 N.E.2d 928 ). 2 The issue before us, then, is whether defendant gave his voluntary consent to the administration of the test, which generally presents a mixed question of law and fact ( see e

2013Applying these principles here, as the People correctly contend, there is no evidence in the record that the defendant personally requested to speak to an attorney prior to submitting to the breath test, and thus the limited right to counsel, first recognized in Gursey , was not triggered or violated (cf. People v Mora-Hernandez, 77 AD3d 531, 531 [2010] [suppressing results of breath test where “(p)olice ignored defendant’s repeated requests for counsel prior to the administration of the test”]).

2013The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAG test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228 ; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requests for counsel prior to the administration of the test]).

2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to

2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to

2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to

2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to

2015Defendant ultimately pleaded guilty to all charges; however, he specifically conditioned his pleas on the fact that he was not waiving his right to appeal and that his application to suppress the results of the chemical test would not be withdrawn. 1 It is well settled that a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has a limited right to consult with an attorney before deciding whether to consent to a chemical test, if he or she requests the assistance of counsel and no danger of delay in the administration of the test is

2013The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAG test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228 ; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requests for counsel prior to the administration of the test]).

2018People v. Mercado , 25 N.Y.3d 936 , 937, 5 N.Y.S.3d 741 , 28 N.E.3d 1181 [2015] ).

2018People v. Mercado , 25 N.Y.3d 936 , 937, 5 N.Y.S.3d 741 , 28 N.E.3d 1181 [2015] ).

2025The record reflects that defendant expressly and voluntarily consented to the administration of the test ( see People v Badia, 130 AD3d 744, 745 [2015], lv denied 26 NY3d 1085 [2015]).

2025The record reflects that defendant expressly and voluntarily consented to the administration of the test ( see People v Badia, 130 AD3d 744, 745 [2015], lv denied 26 NY3d 1085 [2015]).

2023The two hour limitation contained in Vehicle and Traffic Law § 1194 "does not apply where the defendant expressly and voluntarily consents to the administration of the breath test" ( People v Marietta , 61 AD3d 997, 998 [2009]).

2023The two hour limitation contained in Vehicle and Traffic Law § 1194 "does not apply where the defendant expressly and voluntarily consents to the administration of the breath test" ( People v Marietta , 61 AD3d 997, 998 [2009]).

2019As an alternative holding, we find that the People laid a proper foundation for the admission of the results ( see People v Campbell , 73 NY2d 481, 484 [1989]), that included, insofar as relevant to this appeal, testimony establishing that defendant was adequately observed for 15 minutes prior to the administration of the test ( see People v McDonough , 132 AD2d 997, 998 [1987], lv denied 70 NY2d 801 [1987]).

2019As an alternative holding, we find that the People laid a proper foundation for the admission of the results ( see People v Campbell , 73 NY2d 481, 484 [1989]), that included, insofar as relevant to this appeal, testimony establishing that defendant was adequately observed for 15 minutes prior to the administration of the test ( see People v McDonough , 132 AD2d 997, 998 [1987], lv denied 70 NY2d 801 [1987]).

2019In any event, any failure to continuously observe defendant for 15 minutes goes only to the weight to be afforded the test results, and not to their admissibility ( see People v Jones , 50 AD3d 1058, 1059 [2008], lv denied 10 NY3d 936 [2008]).

2017We find no basis to disturb the suppression court's finding that the People failed to meet their burden of proof on the question of defendant's voluntary consent to the breathalyzer test ( see generally People v Dobson , 285 AD2d 737, 738 [2001], lv denied 97 NY2d 658 [2001]), where the People failed to present a full translation of the video recording of the test, particularly the conversation in Spanish between defendant and the Intoxicated Driver Testing Unit officer immediately prior to the administration of the test.

2014(See People v Aliaj, 36 Misc 3d 682, 693 [2012].) Foundational Hearing The People called one witness, Detective William Hanlon of the Highway District, who administered the test to defendant Santiago.

2006According to the Memorandum of the Law Revision Commission Relating to Inheritance by or from Illegitimate (Non-Marital) Children Under Section 4-1.2 of the Estate, Powers and Trusts Law (1980 NY Legis Doc No. 65 [B], at 1, reprinted in 1980 McKinney’s Session Laws of NY, at 1639), the purpose of the bill was to ensure the rights of a nonmarital child whose “father has openly treated the child as his own, despite the absence of a judicial declaration or a formal, filed acknowledgment.” Accordingly, in order to establish rights pursuant to EPTL 4-1.2 (a) (2) (C) the nonmarital child must establ

2005The finding of repeated alcohol misuse is supported by a preponderance of the evidence showing, inter alia, that respondent twice tested positive for high levels of alcohol, on one of which occasions she was observed breast feeding the child just prior to the administration of the test (Family Ct Act § 1046 [a] [iii]; see Matter of Stefanel Tyesha C., 157 AD2d 322, 328 [1990], appeal dismissed sub nom.