PEOPLE v. MOON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Rodney M. MOON, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, four counts of rape in the first degree (Penal Law § 130.35[1], [4] ).   Contrary to the contention of defendant, County Court properly issued an order of protection with respect to his son because the victims of the crimes of which defendant was convicted were his son's half sisters and were members of defendant's household (see generally Matter of Orellana v. Escalante, 228 A.D.2d 63, 64-65, 653 N.Y.S.2d 992).   “When[, as here,] a crime has been committed between members of the same family or household, an order of protection may be issued in favor of the victim of such crime and members of the family or household of the victim” (People v. La Motte, 285 A.D.2d 814, 816-817, 728 N.Y.S.2d 582;  see People v. Shampine, 31 A.D.3d 1163, 1164-1165, 818 N.Y.S.2d 377;  People v. Goodband, 291 A.D.2d 584, 585, 737 N.Y.S.2d 680).   Furthermore, the order of protection does not render the sentence unduly harsh or severe (see People v. Victor, 20 A.D.3d 927, 799 N.Y.S.2d 843, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747, 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486), nor does it in effect constitute a termination of defendant's parental rights.

Defendant failed to preserve for our review his contention that the record reflects that the court determined the length of the sentence prior to sentencing, thus depriving defendant of his right to input at the time of sentencing (see People v. Nieves, 2 N.Y.3d 310, 315-316, 778 N.Y.S.2d 751, 811 N.E.2d 13), 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] ).   Although defendant's related contention that the court failed to apprehend the extent of its discretion in sentencing him does not require preservation (see People v. Schafer, 19 A.D.3d 1133, 797 N.Y.S.2d 206;  see also People v. Hager, 213 A.D.2d 1008, 625 N.Y.S.2d 972), we conclude that the record does not support that contention (see People v. Lee, 24 A.D.3d 1246, 805 N.Y.S.2d 892, lv. denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979;  cf. Schafer, 19 A.D.3d 1133, 797 N.Y.S.2d 206).

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

MEMORANDUM:

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