People v. Carroll

—Judgment unanimously affirmed. Memorandum: The hearing court properly denied defendant’s motion to suppress the results of a test which indicated there was .26% by weight of alcohol in defendant’s bloodstream. The record supports the court’s finding that defendant consented to the blood test (see, People v Dycha, 98 AD2d 966). Results of a blood test taken with defendant’s consent are admissible in a prosecution under the Penal Law (People v Magiera, 97 AD2d 963; cf. People v Casadei, 66 NY2d 846). Defendant’s claim that the test results should have been suppressed because of the People’s failure to establish that the blood sample was kept in an unexpired container was not argued before the hearing court and is not preserved for review (see, People v Hall, 61 NY2d 834, 835; People v Albert, 98 AD2d 725). The record does not support this claim in any event. We have considered defendant’s remaining claims and find them without merit. (Appeal from judgment of Cattaraugus County Court, Doyle, J.—assault, second degree, and vehicular manslaughter.) Present—Callahan, J. P., Doerr, Boomer, Green and Pine, JJ.