Opinion
KA 02-01804.
Decided April 30, 2004.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), rendered June 10, 2002. The judgment convicted defendant, upon his plea of guilty, of rape in the first degree.
WILLIAM F. COUGHLIN, PUBLIC DEFENDER, MAYVILLE, FOR DEFENDANT-APPELLANT.
JAMES P. SUBJACK, DISTRICT ATTORNEY, MAYVILLE (TRACEY A. BRUNECZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of rape in the first degree (Penal Law § 130.35), defendant contends that County Court's alleged error in ordering a confirmatory DNA test rendered his plea of guilty involuntary because the court thereby "tipped the scales" in favor of the prosecution. By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve his contention for our review ( see generally People v. DeJesus, 248 A.D.2d 1023, lv denied 92 N.Y.2d 878). In any event, by pleading guilty, defendant forfeited his contention with respect to the court's alleged error in ordering the confirmatory DNA test ( see generally People v. Hansen, 95 N.Y.2d 227, 230-232; People v. Campbell, 73 N.Y.2d 481, 486; see also People v. Bailey, 156 A.D.2d 846, 847, lv denied 75 N.Y.2d 810).