Id. See also People v. Travis OO, 654 N.Y.S.2d 467, 468 (3d Dep't 1997) (where the court gave an Allen charge that was "essentially similar" to one that the Court of Appeals held "constituted reversible error," the appellate court considered the charge "in the interest of justice," despite the fact that "defendant did not preserve th[e] issue for appellate review"); People v. Arce, 627 N.Y.S.2d 15, 15 (1st Dep't 1995) (reviewing unpreserved objection toAllen charge "in the interest of justice"). Finally, even assuming arguendo that petitioner did not literally comply with the contemporaneous objection rule, it is clear that petitioner at a minimum substantially complied with the rule, thereby satisfying the third Cotto factor.
C.P.L. §§ 470.15(3)(c), 470.15 (6)(a). In four other reported decisions, the Appellate Division was asked to review an unpreserved objection to an Allen charge similar to the offending charge given in this case, and in all four cases the Appellate Division reversed the conviction in the "interest of justice."People v. Travis OO, 237 A.D.2d 646, 647-48, 654 N.Y.S.2d 467, 468 (3d Dep't 1997); People v. Arce, 215 A.D.2d 277, 278, 627 N.Y.S.2d 15, 15 (1st Dep't 1995), appeal denied, 91 N.Y.2d 835, 667 N.Y.S.2d 689 (1997);People v. Jones, 216 A.D.2d 324, 325, 627 N.Y.S.2d 778, 779 (2d Dep't 1995); People v. Allan, 192 A.D.2d 433, 596 N.Y.S.2d 793 (2d Dep't 1993). Accordingly, Larrea could have asserted in his habeas petition that his trial counsel's failure to object to the Allen charge did not constitute an "adequate" state ground for denying relief, because the Appellate Division failed to apply the contemporaneous objection rule "evenhandedly to all similar claims."
The final orders of protection issued by the court on behalf of the "designated witnesses" were beyond the scope of CPL 530.13 (4), since that statute by its own terms limits a final order of protection on behalf of a "designated witness" to a stay away order under paragraph (a). ( People v. Travis OO., 237 AD2d 646; People v. Walker, 81 NY2d 661; People v. Boston, 75 NY2d 585; People v. Ryan, 82 NY2d 497; People v. Robinson, 95 NY2d 179; Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Knight-Ridder Broadcasting v. Greenberg, 70 NY2d 151.) Jeanine Pirro, District Attorney, White Plains ( Richard L. Hecht and Lois Cullen Valerio of counsel), for respondent-appellant.
We also reject defendant's conclusory assertions that the protective order prohibiting him from having contact with his son and stepdaughter until August 2004 is invalid and harsh. When 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 (see, CPL 530.12; see generally, People v. Travis OO., 237 A.D.2d 646; People v. Debo, 234 A.D.2d 944, lv denied 89 N.Y.2d 984). Moreover, where defendant has been convicted of a felony, such order may extend until "three years from the date of the expiration of the maximum term of an indeterminate * * * sentence of imprisonment actually imposed" (CPL 530.12 [ii]). Here, the felony was committed against Laware, and one of the children who is the subject of the order of protection was also a victim in this case and both are members of Laware's family.
We note that an order of protection entered upon a conviction of a violation shall not exceed one year from the date of conviction ( see, CPL 530.13). Here, the order of protection must be deemed to relate only to the violation of harassment in the second degree because that is the only offense for which there was a victim ( cf., People v. Travis OO., 237 A.D.2d 646, 648; People v. Debo, 234 A.D.2d 944, 945, lv denied 89 N.Y.2d 984). Therefore, the order of protection must be amended to provide for an expiration date of June 16, 2000 ( see, People v. Gibbons, 270 A.D.2d 937; People v. Wheeler, 268 A.D.2d 448, 449, lv denied 94 N.Y.2d 926; People v. Nunez, 267 A.D.2d 1050, 1051, lv denied 94 N.Y.2d 905).
Defendant contends that County Court erred in denying his motion to suppress defendant's statements on the ground that the oral and written statements given by defendant were the product of an illegal and forced entry into defendant's home and should be suppressed. It is fundamental that the police may not conduct a search of a private residence without first obtaining a search warrant unless their entry is a result of a voluntary consent of a party possessing the requisite authority or control over the premises to be inspected ( see, People v. Adams, 53 N.Y.2d 1, 8, cert. denied 454 U.S. 854). The police testified that defendant's father invited them in. County Court found that the father possessed the authority to consent to the entrance of police into the residence ( see, People v. Travis OO., 237 A.D.2d 646, 647) and that his consent was voluntarily given, without police coercion. Given the fact that great weight is accorded to the finding of the suppression court ( People v. Pugh, 246 A.D.2d 679, 681, lv denied 92 N.Y.2d 882), we affirm the court's finding that the father was not coerced by the officers into giving consent to search the apartment.
We disagree. The police entry into the house, including the bathroom, was fully consensual ( see, People v Gonzalez, 237 A.D.2d 375; People v. Travis OO., 237 A.D.2d 646; People v. Brown, 234 A.D.2d 211, lv granted 89 N.Y.2d 1017; compare, People v Gonzalez, 88 N.Y.2d 289) and there is nothing to suggest that defendant was under arrest or in police custody at the time of the showup identification ( see, People v. Evans, 237 A.D.2d 458, lv denied 89 N.Y.2d 1092; People v. Smith, 236 A.D.2d 639; People v Smith, 234 A.D.2d 946, lv denied 89 N.Y.2d 1041). In addition, given that the showup identification occurred shortly after the commission of the crime, in close proximity to the location of the crime and was made spontaneously by a neighbor who witnessed defendant flee from the scene of the crime and also by the victim himself, we do not find that it was unduly suggestive ( see, People v. Duuvon, 77 N.Y.2d 541; People v. Santiago, 236 A.D.2d 229, lv denied 89 N.Y.2d 1040).