WRIGHT, LAKEEM, PEOPLE v ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    52
    KA 09-02058
    PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    LAKEEM WRIGHT, DEFENDANT-APPELLANT.
    GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Genesee County Court (Robert C.
    Noonan, J.), rendered September 15, 2009. The judgment convicted
    defendant, upon his plea of guilty, of attempted rape in the second
    degree.
    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
    Genesee County Court for further proceedings in accordance with the
    following Memorandum: Defendant appeals from a judgment convicting
    him upon his plea of guilty of attempted rape in the second degree
    (Penal Law §§ 110.00, 130.30 [1]). Defendant failed to seek youthful
    offender status at the time of the plea proceeding or at sentencing
    and thus failed to preserve for our review his contention that he
    should have been adjudicated a youthful offender (see People v Ficchi,
    64 AD3d 1195, lv denied 13 NY3d 859; People v Capps, 63 AD3d 1632, lv
    denied 13 NY3d 795), and we decline to exercise our power to review
    that contention as a matter of discretion in the interest of justice
    (see CPL 470.15 [6] [a]). We further conclude that the sentence is
    not unduly harsh or severe.
    We agree with defendant, however, that the order of protection
    must be amended. Although the order required in general terms that
    defendant stay away from the family of the victim, it did not comply
    with CPL 530.13 (1) (b) inasmuch as that statute requires that “such
    members of the family or household of [the] victim[] . . . shall be
    specifically named by the court in such order” (CPL 530.13 [1] [b]).
    Although defendant raises that issue for the first time on appeal and
    thus has failed to preserve it for our review (see generally People v
    Nieves, 2 NY3d 310, 315-317; People v Adams, 66 AD3d 1355, 1356, lv
    denied 13 NY3d 858), we nonetheless exercise our power to review it as
    -2-                            52
    KA 09-02058
    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 to render it in compliance with CPL 530.13 (1)
    (b), thus remitting the matter to County Court to specify the names of
    the victim’s family members to whom the order of protection applies.
    Entered:   February 18, 2011                    Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 09-02058

Filed Date: 2/18/2011

Precedential Status: Precedential

Modified Date: 10/8/2016