49 A.D.3d 1314
N.Y. App. Div.
2008

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v BRIAN M. STONE, Appellant

Supreme Court, Appellate Division, Fourth Department, New York

49 AD3d 1314 | 853 NYS2d 794

It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him following a bench trial of, inter alia, rape in the third degree (Penal Law § 130.25 [3]), defendant contends that the verdict is against the weight of the evidence. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). County Court‘s determination to credit the testimony of the victim is entitled to deference, and we see no reason to disturb that determination (see People v Harris, 15 AD3d 966 [2005], lv denied 4 NY3d 831 [2005]).

We agree with defendant, however, that the court erred in determining the duration of the order of protection without taking into account the jail-time credit to which he is entitled (see People v Fomby, 42 AD3d 894, 896 [2007]). Although defendant failed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify the judgment by amending the order of protection, and we remit the matter to County Court to determine the jail time credit to which defendant is entitled, and to specify in the order of protection an expiration date in accordance with CPL 530.13 (former [4]), the version of the statute in effect when the judgment was rendered on June 23, 2006. Present—Martoche, J.P., Smith, Centra, Peradotto and Green, JJ.