People v Ayala, 2011 NY Slip Op 06585 [87 AD3d 926]

September 27, 2011

Appellate Division, First Department

— [*1]

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]). Concur—Andrias, J.P., Sweeny, Moskowitz, Richter and RomÁn, JJ..