People v. Tehoke

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.

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 [1]), 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 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]). 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 NY2d 227, 230-232 [2000]; People v Campbell, 73 NY2d 481, 486 [1989]; see also People v Bailey, 156 AD2d 846, 847 [1989], lv denied 75 NY2d 810 [1990]). Present—Pigott, Jr., PJ., Pine, Scudder, Gorski and Hayes, JJ.