| People v Castaneda |
| 2019 NY Slip Op 04860 [173 AD3d 1791] |
| June 14, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v David L. Castaneda, Appellant. (Appeal No.1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (James M. Specyal of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Michael F. Pietruszka, A.J.),rendered December 13, 2016. The judgment convicted defendant, upon his plea of guilty, ofunlawful surveillance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby adding to the end of special condition of probation No. 16 the phrase, "except in connectionwith education, lawful employment or search for lawful employment," and as modified thejudgment is affirmed.
Memorandum: These consolidated appeals arise from an incident in which defendant usedhis cell phone to observe a woman while she was sitting in a bathroom stall. Defendant appeals,in appeal No. 1, from a judgment convicting him upon his plea of guilty of unlawful surveillancein the second degree (Penal Law § 250.45 [2]). In appeal No. 2, he appeals from anorder adjudicating him a level two risk pursuant to the Sex Offender Registration Act (SORA)(Correction Law § 168 et seq.).
In appeal No. 1, defendant contends that his waiver of the right to appeal is invalid. We rejectthat contention. County Court "expressly ascertained from defendant that, as a condition of theplea, he was agreeing to waive his right to appeal, and the court did not conflate that right withthose automatically forfeited by a guilty plea" (People v Thompson, 83 AD3d 1535, 1535 [4th Dept 2011][internal quotation marks omitted]; seePeople v Rush, 94 AD3d 1449, 1449 [4th Dept 2012], lv denied 19 NY3d 967[2012]; People v Harris, 77 AD3d1326, 1326 [4th Dept 2010], lv denied 16 NY3d 743 [2011]). Although we agreewith defendant that the written waiver of the right to appeal contains improperly overbroadlanguage concerning the rights that he waived, "[a]ny nonwaivable issues purportedlyencompassed by the waiver are excluded from the scope of the waiver [and] the remainder of thewaiver is valid and enforceable" (Peoplev Weatherbee, 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038[2017] [internal quotation marks omitted]; see People v King, 151 AD3d 1651, 1652 [4th Dept 2017], lvdenied 30 NY3d 951 [2017]). Defendant's valid waiver of the right to appeal foreclosesreview of his request that we exercise our interest of justice jurisdiction to adjudicate him ayouthful offender (see People vTorres, 110 AD3d 1119, 1119 [3d Dept 2013], lv denied 22 NY3d 1044 [2013];see also People v Pacherille, 25NY3d 1021, 1024 [2015]; seegenerally People v Lopez, 6 NY3d 248, 255 [2006]).
Defendant further contends in appeal No. 1 that the court imposed several unlawfulconditions of probation. Initially, we note that defendant's contentions are not encompassed bythe valid waiver of the right to appeal because they are based on challenges to the legality of thesentence (see King, 151 AD3d at 1652; People v Fishel, 128 AD3d 15, 17 [3d Dept 2015]). Additionally,although defendant failed to preserve those contentions for our review, there is a "narrowexception to [the] preservation rule permitting appellate review when a sentence's illegality isreadily discernible from the trial record" (People v Santiago, 22 NY3d 900, 903 [2013]), and that exceptionencompasses a contention that a "probation condition is unlawful because it is not reasonablyrelated to rehabilitation or is outside the authority of the court to impose" (Fishel, 128AD3d at 17-18; see King, 151 AD3d at 1652). We conclude that, inasmuch as defendant'schallenges to the conditions of probation here "implicate the legality of defendant's sentence andany illegality is evident on the face of the record, those claims are not barred by . . .defendant's failure to preserve them" (Fishel, 128 AD3d at 17-18; see King, 151AD3d at 1652).
With respect to the merits, the People correctly concede that the court erred in barringdefendant from all use of the internet. The statute provides that a sentencing "court may requirethat the defendant comply with a reasonable limitation on his or her use of the internet. . . provided that the court shall not prohibit such sentenced offender from using theinternet in connection with education, lawful employment or search for lawful employment"(Penal Law § 65.10 [5-a]). We therefore modify the judgment by adding to the endof special condition of probation No. 16 the phrase, "except in connection with education, lawfulemployment or search for lawful employment." We have considered defendant's remainingchallenges to the conditions of probation, and we conclude that none warrants furthermodification or reversal of the judgment (see generally King, 151 AD3d at 1653-1654;People v Wahl, 302 AD2d 976, 976 [4th Dept 2003], lv denied 99 NY2d 659[2003]).
In appeal No. 2, we reject defendant's contention that the court abused its discretion ingranting an upward departure from his presumptive level one risk, which was based on his scoreon the risk assessment instrument, and classifying him as a level two risk. It is well settled that aSORA "court may make an upward departure from a presumptive risk level when, afterconsideration of the indicated factors[,] . . . [the court determines that] there existsan aggravating . . . factor of a kind, or to a degree, not otherwise adequately takeninto account by the [risk assessment] guidelines" (People v Abraham, 39 AD3d 1208, 1209 [4th Dept 2007] [internalquotation marks omitted]; see People vDiaz, 100 AD3d 1491, 1491 [4th Dept 2012], lv denied 20 NY3d 858 [2013]).The "court's discretionary upward departure [must be] based on clear and convincing evidence ofaggravating factors" (People vSherard, 73 AD3d 537, 537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]; see People v Tidd, 128 AD3d1537, 1537 [4th Dept 2015], lv denied 25 NY3d 913 [2015]) and, "[i]n determiningwhether to depart from a presumptive risk level, the hearing court weighs the aggravating ormitigating factors alleged by the departure-requesting party to assess whether, under the totalityof the circumstances, a departure is warranted" (People v Howard, 27 NY3d 337, 341 [2016]; see People v Sincerbeaux, 27 NY3d683, 689-690 [2016]).
Here, defendant had two youthful offender adjudications arising from sexual conduct, whichwere imposed after this incident but were based on conduct that occurred before it. Those eventswere "not adequately taken into consideration by the risk assessment guidelines and [were]properly considered as justification for the upward departure" (People v Roberts, 54 AD3d 1106,1107 [3d Dept 2008], lv denied 11 NY3d 713 [2008]; see People v Perez, 158 AD3d 1070, 1071 [4th Dept 2018], lvdenied 31 NY3d 905 [2018]; Peoplev Shepard, 103 AD3d 1224, 1224-1225 [4th Dept 2013], lv denied 21 NY3d 856[2013]). Present—Smith, J.P., Carni, DeJoseph, NeMoyer and Troutman, JJ.