        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
