| People v Stone |
| 2008 NY Slip Op 02431 [49 AD3d 1314] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian M.Stone, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered June 23,2006. The judgment convicted defendant, after a nonjury trial, of rape in the third degree,criminal sexual act in the third degree, criminal trespass in the second degree and unlawfulimprisonment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by amending the order of protection and asmodified the judgment is affirmed, and the matter is remitted to Erie County Court for furtherproceedings in accordance with the following memorandum: On appeal from a judgmentconvicting 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 rejectthat contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). CountyCourt's determination to credit the testimony of the victim is entitled to deference, and we see noreason to disturb that determination (seePeople 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 theorder of protection without taking into account the jail-time credit to which he is entitled (see People v Fomby, 42 AD3d894, 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 theinterest of justice (see CPL 470.15 [6] [a]). We therefore modify the judgment byamending the order of protection, and we remit the matter to County Court to determine the jailtime credit to which defendant is entitled, and to specify in the order of protection an expirationdate in accordance with CPL 530.13 (former [4]), the version of the statute in effect when thejudgment was rendered on June 23, 2006. Present—Martoche, J.P., Smith, Centra,Peradotto and Green, JJ.