THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RAYMOND GUZMAN DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him, upon his plea of guilty, of criminal sexual act in the first degree (Penal Law § 130.50[1] ), defendant contends that County Court erred in refusing to suppress the results of testing or analysis of his bodily fluids, obtained through an oral swab.   Although the People are incorrect in asserting that defendant failed to preserve his contention for our review (see CPL 470.05[2];  cf.  People v. Rogers, 277 A.D.2d 876, lv denied 96 N.Y.2d 834;  People v. Jamison, 219 A.D.2d 853, lv denied 87 N.Y.2d 974, 88 N.Y.2d 966), we nevertheless conclude that defendant's contention lacks merit because defendant's consent to the oral swab was voluntarily given (see People v. Gonzalez, 39 N.Y.2d 122, 128;  People v. Hall, 35 AD3d 1171, lv denied 8 NY3d 923;  People v. Caldwell, 221 A.D.2d 972, lv denied 87 N.Y.2d 920).

Defendant further contends that the court should have granted his motion to withdraw his plea based on his protestations of innocence and his assertion that the plea was not knowing, voluntary and intelligent.   We reject that contention.   The record establishes that defendant's plea was knowing, voluntary, and intelligent (see People v. Spikes, 28 AD3d 1101, 1102, lv denied 7 NY3d 818;  People v. Murray, 207 A.D.2d 999, lv denied 84 N.Y.2d 1014), and defendant did not submit any new evidence to substantiate his protestations of innocence (see People v. Baret, 11 NY3d 31, 33-34;  People v. Kimmons, 39 AD3d 1180;  People v. Klein, 11 AD3d 959).   Thus, contrary to defendant's contention, the court did not err in summarily denying his motion, and the court had no duty to conduct an inquiry to determine whether the plea was knowingly, voluntarily and intelligently entered (see People v. Lopez, 71 N.Y.2d 662, 666).

Patricia L. Morgan

Clerk of the Court