PEOPLE v. STONE (2008)

 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 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   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 A.D.3d 966, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679).

 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 A.D.3d 894, 896, 839 N.Y.S.2d 901).   Although defendant failed to preserve that contention for our review (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13), 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.

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.

MEMORANDUM: