Opinion
February 21, 1986
Appeal from the Cattaraugus County Court, Doyle, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Pine, JJ.
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 A.D.2d 966). Results of a blood test taken with defendant's consent are admissible in a prosecution under the Penal Law (People v. Magiera, 97 A.D.2d 963; cf. People v Casadei, 66 N.Y.2d 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 N.Y.2d 834, 835; People v. Albert, 98 A.D.2d 725). The record does not support this claim in any event. We have considered defendant's remaining claims and find them without merit.