| People v Mead |
| 2015 NY Slip Op 08304 [133 AD3d 1257] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Donald E. Mead, Jr., Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered December 4, 2013. The judgment convicted defendant, upon his Alfordplea, of attempted assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by striking as a condition of probation the requirement that defendant consent tothe waiver of his Fourth Amendment right protecting him from a search of his home andas modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon hisAlford plea of attempted assault in the second degree (Penal Law§§ 110.00, 120.05 [2]). Contrary to defendant's contention, his waiverof the right to appeal was knowing, voluntary and intelligent (see People v Bradshaw, 18NY3d 257, 264-265 [2011]), and that waiver encompasses his challenge to thelength of the term of probation imposed (see People v Lopez, 6 NY3d 248, 256 [2006]). To theextent that the written waiver of the right to appeal included nonwaivable rights, thoserights are "excluded from the scope of the waiver [and] the remainder of the waiver isvalid and enforceable" (People v Williams, 132 AD3d 1291, 1291 [2015] [internal quotation marks omitted]).
We agree with defendant, however, that the waiver of the right to appeal does notencompass his challenge to the condition of probation that required him to sign a consentto waive his Fourth Amendment right protecting him from a search of his home on theground that it is related to defendant's "drug/alcohol abuse," inasmuch as that conditionwas not part of the plea agreement (see generally People v Leiser, 124 AD3d 1349, 1350[2015]). We also agree with defendant that the condition does not relate to "theprobationary goal of rehabilitation" and thus is not enforceable on that ground(People v Hale, 93 NY2d 454, 460 [1999]; cf. People v Schunk, 269AD2d 857, 857 [2000]). Indeed, the presentence report indicated that the 51-year-olddefendant, a first-time offender, does not have a history of drug or alcohol abuse and thathe was not under the influence of drugs or alcohol at the time of the offense. It is wellestablished that "a probationer's home is protected by the constitutional requirement thatsearches be reasonable . . . [A] probationer loses some privacy expectationsand some part of the protections of the Fourth Amendment, but not all of both"(Hale, 93 NY2d at 459). We therefore modify the judgment by striking as acondition of probation the requirement that defendant consent to the waiver of his FourthAmendment right protecting him from a search of his home. Present—Scudder,P.J., Smith, Centra, Whalen and DeJoseph, JJ.