| People v McElhearn |
| 2008 NY Slip Op 09118 [56 AD3d 954] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian H.McElhearn, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 2, 2007, convicting defendant upon his plea of guilty of the crime ofattempted disseminating indecent material to minors in the first degree.
Admitting that he transmitted a sexually graphic image from his computer to a person whomhe believed to be a 14-year-old girl, defendant pleaded guilty to attempted disseminating indecentmaterial to minors in the first degree. As part of his plea, defendant waived his right to appeal.County Court thereafter sentenced defendant to 180 days in jail and 10 years of probation, to beserved concurrently. The court expressly noted that a condition of defendant's probation would bethat defendant is precluded from having computers or access to computers, and that his homewould be inspected by the Probation Department once a month to ensure that no computers werepresent. Defendant now appeals.[FN*]
We are unpersuaded by defendant's argument that his sentence is invalid because thecondition that he not be permitted to have a computer in his residence was not set forth in the[*2]written orders and conditions of probation (see CPL410.10 [1]). Inasmuch as the sentencing transcript reveals that County Court expressly adviseddefendant of the restriction, we conclude that the record establishes defendant's knowledge of theprecise condition imposed. Thus, although the better practice is to provide defendant with awritten copy of all conditions of probation, defendant's sentence was not rendered invalid by theprocedure employed by County Court here (see People v Hurst, 197 AD2d 730, 730[1993]; People v Davey, 193 AD2d 1108, 1108 [1993]; People v Nazarian, 150AD2d 923, 923-924 [1989], lv denied 74 NY2d 744 [1989]). Moreover, we reject asmeritless defendant's assertion that the condition is so vague as to be unenforceable. Finally,defendant's challenges to the condition both as an abuse of discretion and as unduly harsh arebarred by his valid waiver of his right to appeal (see generally People v Lopez, 6 NY3d 248, 255-256 [2006]).
Peters, Spain, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant also separatelychallenges his subsequent classification as a risk level three sex offender (People vMcElhearn, 56 AD3d 978 [2008] [decided herewith]).