| People v Dranchuk |
| 2022 NY Slip Op 01312 [203 AD3d 741] |
| March 2, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Volodymyr Dranchuk, Appellant. |
Patricia Pazner, New York, NY (David L. Goodwin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, andDaniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P.Murphy, J.), rendered September 13, 2019, convicting him of attempted assault in the seconddegree, upon his plea of guilty, and imposing sentence of community service and a term 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.
The defendant was sentenced to community service and a term of probation, in exchange forhis plea of guilty to attempted assault in the second degree. His conviction arose from his assaultof a taxi cab driver and theft of her cell phone. The defendant had no prior criminal history. Byhis own account to the probation department, the defendant was under the influence of alcohol atthe time of the offense. However, the probation department, which did a substance abuseassessment, did not recommend that the defendant abstain from alcohol use or participate in asubstance abuse program. The probation department did request that as a condition of probation,the defendant be required to consent to a search by a probation officer of his person, vehicle, andplace of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or otherweapon, or other contraband found (Condition No. 28). At sentencing, the Supreme Courtimposed the consent to search condition of probation. On appeal, the defendant argues that thiscondition of his probation was improperly imposed.
The defendant correctly argues, and the People do not dispute, that this issue was notrequired to be preserved for appellate review, and that appellate review is not precluded by hiswaiver of the right to appeal (see Peoplev Hakes, 32 NY3d 624, 628 n 3 [2018]; People v Acuna, 195 AD3d 854, 855 [2021]; People v Romanelli, 188 AD3d1354, 1355 [2020]; People vSaraceni, 153 AD3d 1559, 1560 [2017]).
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, [*2]265 [1995]).
Here, the defendant was a first-time offender and was not armed with a weapon at the timehe committed the offense. While the defendant told the probation department that he was underthe influence of alcohol at the time of the offense, he was not assessed as being in need ofalcohol or substance abuse treatment. Under the circumstances, the consent to search condition ofprobation was improperly imposed because it was not individually tailored in relation to theoffense, and was not, therefore, reasonably related to the defendant's rehabilitation, or necessaryto ensure that the defendant will lead a law abiding life (see People v Hale, 93 NY2d 454,461 [1999]; People v Acuna, 195 AD3d at 855; People v Mead, 133 AD3d 1257, 1258 [2015]). Brathwaite Nelson,J.P., Chambers, Roman and Zayas, JJ., concur.