People v. Petrusch , 760 N.Y.S.2d 921 ( 2003 )

—Appeal from a judgment of Oswego County Court (Hafrier, Jr., J.), entered March 2, 2001, convicting defendant upon his plea of guilty of rape in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the order of protection and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of rape in the third degree (Penal Law § 130.25 [2]) arising from his sexual relations with a 16-year-old girl, defendant contends that County Court erred in granting an order of protection in favor of defendant’s wife inasmuch as defendant was not “convict [ed] of any crime or violation between spouses, parent and child, or between members of the same family or household” (CPL 530.12 [5]). We agree. We therefore modify the judgment by vacating the order of protection. Present — Green, J.P., Hurlbutt, Kehoe, Gorski and Hayes, JJ.