| People v Arias |
| 2022 NY Slip Op 06760 [210 AD3d 593] |
| November 29, 2022 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Alexander Arias, Appellant. |
Twyla Carter, The Legal Aid Society, New York (Laura Boyd of counsel), forappellant.
Alvin L. Bragg, Jr., District Attorney, New York (Brent E. Yarnell of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered April11, 2019, convicting defendant, upon his plea of guilty, of attempted robbery in thesecond degree, and sentencing him to five years' probation, unanimously modified, onthe law, to the extent of striking the condition of probation requiring that defendantconsent to search by a probation officer of his person, vehicle, or place of abode for"illegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband," andotherwise affirmed.
Defendant made a valid waiver of the right to appeal (see People v Thomas, 34 NY3d545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]; People v Bryant, 28 NY3d1094 [2016]), which forecloses his claim that his sentence is excessive. In any event,we find no basis for reducing the sentence.
The court improperly imposed, as a condition of probation, a requirement thatdefendant consent to a search by his probation officer of his person, vehicle, or place ofabode for "illegal drugs, drug paraphernalia, gun/firearm or other weapon orcontraband." Defendant was not under the influence of any substance or armed with aweapon when he committed the crime of which he was convicted, and he had no historyof offenses involving substance abuse or weapons. Accordingly, the consent to searchcondition was not reasonably related to defendant's rehabilitation, or necessary to ensurethat he will lead a law abiding life (see People v Dranchuk, 203 AD3d 741 [2d Dept 2022]; People v Acuna, 195 AD3d854 [2d Dept 2021]; Peoplev Saraceni, 153 AD3d 1559, 1560 [4th Dept 2017], lv denied 30 NY3d1119 [2018]; People vMead, 133 AD3d 1257 [4th Dept 2015]). Because this issue implicates thelegality of the sentence imposed, it survives defendant's waiver of the right to appeal (see People v Hakes, 32 NY3d624, 628 n 3 [2018]). Concur—Acosta, P.J., Kern, Singh, Scarpulla, Pitt,JJ.