| People v Freeman |
| 2019 NY Slip Op 01037 [169 AD3d 1513] |
| February 8, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Lamont Freeman, Appellant. |
Catherine H. Josh, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), enteredJune 14, 2013. The judgment revoked defendant's sentence of probation and imposed a sentence ofimprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation previouslyimposed upon his conviction of attempted criminal possession of a weapon in the second degree (PenalLaw §§ 110.00, 265.03 [3]) upon a determination that he violated the terms andconditions of his probation.
At the outset, we note that, although defendant has served his sentence and the maximumexpiration date of his period of postrelease supervision has passed, a "determination that defendant hasviolated the conditions of his probation is 'a continuing blot on [his] record' with potential futureconsequences" (People v Wiggins, 151AD3d 1859, 1859 [4th Dept 2017], lv denied 30 NY3d 954 [2017], quoting Matterof Williams v Cornelius, 76 NY2d 542, 546 [1990]). Thus, contrary to the People's contention, theinstant appeal is not moot.
Defendant contends that Supreme Court erred in concluding that he violated the conditions of hisprobation by using marihuana, failing to obtain employment or enroll in school, and failing to reportpolice contact to his probation officer inasmuch as those violations are de minimis. However, "[a]t notime during the probation revocation proceedings did defendant raise any challenge to the allegedly 'deminimis' nature of the violation[s] or raise any due process challenge to the proceeding" (People v Swick, 147 AD3d 1346,1346 [4th Dept 2017], lv denied 29 NY3d 1001 [2017]). Thus, defendant's contention is notpreserved for our review. In any event, it lacks merit. We further reject defendant's contention that thePeople presented only hearsay evidence to establish that defendant violated the aforementionedconditions of his probation (see Wiggins, 151 AD3d at 1860).
Defendant also contends that the court erred in concluding that he violated the conditions of hisprobation by failing to consent to a search of an apartment that he was in at the time of the search andby possessing contraband. Insofar as defendant contends that the contraband should have beensuppressed because it was discovered as a result of an unlawful search, the contention is unpreserved(see People v Bevilacqua, 91 AD3d1120, 1121 n [3d Dept 2012]; People vSoprano, 27 AD3d 964, 965 [3d Dept 2006]), and we decline to exercise our power toaddress the contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). To the extent that defendant's remaining contentions regarding the failure to consent to a searchand possession of contraband are preserved, we conclude that they lack merit.
Contrary to defendant's further contention, the People established that defendant was aware ofeach of the conditions of his probation. Here, the record reflects that defendant signed an amendedorder and conditions of probation in open court, acknowledging that he read, understood, and agreedto accept the conditions (see People v Hale, 93 NY2d 454, 461 [1999]).
Finally, defendant contends that he was deprived of effective assistance of counsel in variousrespects. We reject defendant's allegation that defense counsel was ineffective in failing to move tosuppress the contraband inasmuch as defendant failed to " 'demonstrate the absence of strategicor other legitimate explanations' for defense counsel's allegedly deficient conduct" under thecircumstances of this case (People vBank, 129 AD3d 1445, 1447 [4th Dept 2015], affd 28 NY3d 131 [2016], quotingPeople v Rivera, 71 NY2d 705, 709 [1988]). We have reviewed defendant's remainingallegations of ineffective assistance of counsel and conclude that they lack merit.Present—Whalen, P.J., Smith, Centra, Carni and Troutman, JJ.