| People v Saraceni |
| 2017 NY Slip Op 06732 [153 AD3d 1559] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Joseph A.Saraceni, Jr., Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedFebruary 5, 2015. The judgment convicted defendant, upon his plea of guilty, of sexual abuse inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby striking as a condition of probation the requirement that defendant consent to the waiver of hisFourth Amendment right protecting him from unreasonable searches and seizures of his person,home, and personal property and to submit to chemical tests of his breath, blood or urine, and bystriking special condition nine as a condition of probation, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofsexual abuse in the first degree (Penal Law § 130.65 [1]). We reject defendant'scontention that County Court erred in failing to state its reasons for denying youthful offenderstatus (see People v Minemier, 29NY3d 414, 419-421 [2017]). The valid waiver of the right to appeal forecloses defendant'schallenge to the court's discretionary determination to deny youthful offender status (see People v Pacherille, 25 NY3d1021, 1024 [2015]; People vDaigler, 148 AD3d 1685, 1686 [2017]; People v Bailey, 137 AD3d 1620, 1621 [2016], lv denied 27NY3d 1128 [2016]). Contrary to defendant's contention, the court was not required to explainthat the waiver of the right to appeal would specifically encompass the court's discretionarydetermination on youthful offender status (see generally People v Kemp, 94 NY2d 831,833 [1999]). We decline to exercise our interest of justice jurisdiction to adjudicate defendant ayouthful offender (see People vAgee, 140 AD3d 1704, 1704-1705 [2016], lv denied 28 NY3d 925 [2016]).
Defendant next contends that various conditions of his probation are not authorized by PenalLaw § 65.10. We agree with defendant that his contention is not precluded by thewaiver of the right to appeal and does not require preservation inasmuch as his challenges tothose conditions implicate the legality of the sentence (see People v King, 151 AD3d 1651, 1652 [2017]; see generallyPeople v Letterlough, 86 NY2d 259, 263 n 1 [1995]). We agree with defendant that thedocument he signed requiring him to consent to waive his Fourth Amendment right protectinghim from unreasonable searches and seizures of his person, home, and personal property, and tosubmit to chemical tests of his breath, blood, or urine, is not enforceable because it was notrelated to the probationary goal of rehabilitation (see People v Mead, 133 AD3d 1257, 1258 [2015]). The waiver andconsent to search was ostensibly based on defendant's acknowledgment that his criminalbehavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant wasunder the influence of alcohol or drugs when he committed the offense or had a history of drug oralcohol abuse (see id.; cf. King, 151 AD3d at 1653). For similar reasons, we agreewith defendant that special condition nine of the conditions of probation, which required him toabstain from the use or possession of alcoholic beverages and to submit to appropriate alcoholtesting, is also not enforceable and must be stricken.
Contrary to defendant's contention, special condition four of the conditions of probation istaken verbatim from Penal Law § 65.10 (2) (b) and is therefore a lawful conditionof probation. Likewise, special conditions 17, 18, and 21 are lawful conditions of probationpursuant to section 65.10 (4-a) (b). Defendant's remaining challenges to the legality of certainother conditions of probation are without merit. Finally, defendant's constitutional challenges tocertain conditions of probation are not preserved for our review (see King, 151 AD3d at1654; People v Rawson, 125 AD3d1323, 1324 [2015], lv denied 26 NY3d 934 [2015]; see generally People v Pena, 28 NY3d727, 730 [2017]), and we decline to exercise our power to review those challenges as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).Present—Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.