Opinion
KA 01-00577
February 7, 2003.
Appeal from a judgment of Genesee County Court (Noonan, J.), entered January 30, 2001, convicting defendant after a jury trial of sexual abuse in the first degree.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA, FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by amending the order of protection to limit its duration to "three years from the date of the expiration of the maximum term of [the] * * * sentence of imprisonment actually imposed" (CPL 530.13 [ii]), taking into account any jail time credit to which defendant is entitled, and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of sexual abuse in the first degree (Penal Law former § 130.65 [3]) and sentencing him as a second violent felony offender to a determinate term of incarceration of six years. Contrary to defendant's contention, the verdict is not against the weight of the evidence on the issue whether defendant molested the victim (see People v. Ridgeway, 295 A.D.2d 879, 880, lv denied 98 N.Y.2d 713; People v. Miller, 294 A.D.2d 951; People v. Robinson, 286 A.D.2d 989, lv denied 97 N.Y.2d 658; see generally People v. Bleakley, 69 N.Y.2d 490, 495). The jury's determination of credibility is entitled to great deference, and there is no basis for concluding that the jury failed to give the evidence the weight it should be accorded (see Robinson, 286 A.D.2d 989; see also Bleakley, 69 N.Y.2d at 495). The sentence is not unduly harsh or severe. As conceded by the People, however, the order of protection must be amended by limiting its duration to "three years from the date of the expiration of the maximum term of [the] * * * sentence of imprisonment actually imposed" (CPL 530.13 [ii]), taking into account any jail time credit to which defendant is entitled (see People v. Holmes, 294 A.D.2d 871, 872, lv denied 98 N.Y.2d 730; People v. Puno, 294 A.D.2d 875, 876, lv denied 98 N.Y.2d 680; People v. Viehdeffer, 288 A.D.2d 860). We therefore modify the judgment accordingly.