People v. Marte, 197 A.D.3d 411

Defendant stopped for speeding (70 mph) on March 20, 2017; officer smelled alcohol, defendant admitted two beers, and was arrested.
Defendant was taken to the precinct and submitted to an Intoxilyzer breath test; timing of arrest and testing (and pre-test protocols) became central to later challenges.
Pretrial omnibus/Dunaway–Huntley suppression hearing occurred; defense counsel declined to contest voluntariness of the breath test at that hearing and no evidence about the Intoxilyzer administration was presented.
Midtrial, after opening statements and some testimony, defense counsel for the first time moved to suppress the Intoxilyzer results on grounds that consent was involuntary (relying on People v Odum and the two‑hour rule); the court summarily denied the motion as untimely.
Jury convicted defendant of the per se DWI count (VTL §1192[2]) based on the .08% result and acquitted the common-law DWI count; appellate court affirmed denial of the untimely suppression motion; one justice dissented and would have remanded for a voluntariness hearing.

Issue	People’s Argument	Marte’s Argument	Held
Whether a midtrial suppression motion to suppress Intoxilyzer results as involuntary consent was timely or should be summarily denied under CPL 255.20	Motion untimely; defendant knew facts, declined to raise at pretrial hearing, and showed no good cause or diligence for delay — summary denial appropriate	Odum raised a dispositive voluntariness claim based on warnings given after two hours; counsel only learned/pressed it at trial and thus sought relief within CPL 255.20(3) good‑cause window	Affirmed: trial court did not abuse discretion in summarily denying the untimely motion (no good cause shown)
Whether, on the merits, consent was involuntary under the two‑hour rule (Odum) when refusal warnings were given after two hours	The court did not reach merits; People argued testing procedures began within two hours so test was "administered" within two hours	Odum: warnings given after the 2‑hour window rendered subsequent consent involuntary; suppression required	Majority did not rule on merits; dissent would remand for a voluntariness hearing and viewed Odum as likely controlling

People v Odum, 31 N.Y.3d 344 (N.Y. 2018) (holding breath test given after two hours with inaccurate refusal warnings can produce involuntary consent; results inadmissible)
People v Atkins, 85 N.Y.2d 1007 (N.Y. 1995) (two‑hour rule: tests after two hours may be admissible if consent is voluntary)
People v Rosa, 112 A.D.3d 551 (1st Dep't 2013) (discussed deemed‑consent/refusal warnings and voluntariness of post‑two‑hour consent)
People v Mason, 157 A.D.3d 439 (1st Dep't 2018) (upholding trial court discretion to deny untimely suppression motions)
People v Weaver, 112 A.D.2d 782 (4th Dep't 1985) (discretionary standard for entertaining untimely pretrial motions)