| People v Acuna |
| 2021 NY Slip Op 03846 [195 AD3d 854] |
| June 16, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edgar Acuna, Appellant. |
Paul Skip Laisure, New York, NY (David L. Goodwin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Shalom J. Twersky, andMichael Bierce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MatthewD'Emic, J.), rendered July 10, 2019, convicting him of burglary in the third degree and criminalcontempt in the second degree, upon his plea of guilty, and imposing concurrent terms ofprobation, including Condition No. 28, requiring the defendant to consent to a search by aprobation officer of his person, vehicle, and place of abode, and the seizure of any illegal drugs,drug paraphernalia, gun/firearm or other weapon or contraband found.
Ordered that the judgment is modified, on the law, by deleting Condition No. 28 from theconditions of probation; as so modified, the judgment is affirmed.
In exchange for his plea of guilty to burglary in the third degree and criminal contempt in thesecond degree, the defendant was sentenced to four years' probation and three years' probation,respectively, to run concurrently. There is no indication in the record that the conditions ofprobation were discussed at any time prior to the imposition of sentence. One of the conditions ofprobation (Condition No. 28) required the defendant to consent to a search by a probation officerof his person, vehicle, and place of abode, and the seizure of any illegal drugs, drugparaphernalia, gun/firearm or other weapon or contraband found. On appeal, the defendant arguesthat this condition of his probation was improperly imposed.
Pursuant to Penal Law § 65.10 (1), the conditions of probation "shall be such asthe court, in its discretion, deems reasonably necessary to insure that the defendant will lead alaw-abiding life or to assist him to do so." The statute "quite clearly restricts probation conditionsto those reasonably related to a defendant's rehabilitation" (People v Letterlough, 86NY2d 259, 265 [1995]).
The defendant correctly argues that he was not required to preserve this issue for appellatereview (see People v Hakes, 32NY3d 624, 628 n 3 [2018]; People v Letterlough, 86 NY2d at 263 n 1; Matter of Brandon W., 28 AD3d783, 785 [2006]).
The defendant was not under the influence of any substance or armed with a weapon when hecommitted the crimes at issue, and his criminal history did not include offenses involving [*2]substance abuse or weapons. As such, the consent to searchcondition of probation was improperly imposed because it was not reasonably related to thedefendant's rehabilitation, or necessary to ensure that the defendant will lead a law abiding life(see People v Saraceni, 153 AD3d1559, 1560 [2017]; People vMead, 133 AD3d 1257, 1258 [2015]). LaSalle, P.J., Chambers, Duffy and Barros, JJ.,concur.