PEOPLE v. SMITH (2008)

 Defendant appeals from a judgment convicting him, upon his guilty plea, of rape in the third degree (Penal Law § 130.25[2] ).   Contrary to the contention of defendant, Supreme Court properly denied his motion to withdraw his guilty plea.   The record establishes that defendant's plea was knowingly, intelligently and voluntarily entered (see People v. Wilson, 38 A.D.3d 1326, 832 N.Y.S.2d 726, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892;  People v. Smith, 5 A.D.3d 1095, 1095-1096, 773 N.Y.S.2d 718, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478;  see generally People v. Fiumefreddo, 82 N.Y.2d 536, 543-544, 605 N.Y.S.2d 671, 626 N.E.2d 646).   Also contrary to the contention of defendant, he was afforded a sufficient opportunity to be heard on his motion to withdraw the plea (see People v. Irvine, 42 A.D.3d 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615;  People v. Peters, 302 A.D.2d 869, 753 N.Y.S.2d 780, lv. denied 100 N.Y.2d 541, 763 N.Y.S.2d 7, 793 N.E.2d 421).

 Defendant further contends that the court should have conducted a Frye hearing on the issue whether the Y-STR DNA analysis performed on samples taken from the victim's rape kit and from defendant was admissible in evidence.   By pleading guilty, however, defendant forfeited any objection to the admissibility of the DNA analysis (see People v. Hansen, 95 N.Y.2d 227, 230-232, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Joyner, 19 A.D.3d 1129, 796 N.Y.S.2d 818;  People v. Williams, 288 A.D.2d 409, 733 N.Y.S.2d 222, lv. denied 98 N.Y.2d 656, 745 N.Y.S.2d 515, 772 N.E.2d 618).

 Finally, defendant's valid waiver of the right to appeal “includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence” (People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: