
    The People of the State of New York, Respondent, v Richard J. Dycha, Appellant.
   — Judgment unanimously affirmed. Memorandum: The results of a blood test which indicated that there was .19% by weight of alcohol in defendant’s bloodstream within two hours after a fatal traffic accident were properly admitted at defendant’s trial for criminally negligent homicide; however, we base our determination on a ground different from that relied on by County Court. The testimony at the suppression hearing indicates that defendant, although initially refusing to take a blood test, consented to it after being advised of the consequences of his refusal and consulting with his brother. Detective Orlikowski testified that he personally witnessed defendant give his consent. That testimony was unrefuted, defendant testifying only that he did not recall giving such consent. Results of a blood test taken with defendant’s consent are admissible in a prosecution under the Penal Law (see People v Magiera, 97 AD2d 963). (Appeal from judgment of Erie County Court, La Mendola, J. — criminally negligent homicide.) Present — Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.  