| People v Mensah |
| 2023 NY Slip Op 05622 [221 AD3d 732] |
| November 8, 2023 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dickson Mensah, Appellant. |
Patricia Pazner, New York, NY (Mark W. Vorkink of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Michael Bierce,and Sawyer White of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (E.Niki Warin, J.), rendered August 25, 2022, convicting him of assault in the seconddegree, upon his plea of guilty, and sentencing him to a definite term of incarceration ofone day, to be followed by a term of probation, which included as a condition ConditionNo. 28, requiring the defendant to consent to a search by a probation officer or aprobation officer and his or her agent of his person, vehicle, and place of abode, and theseizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon, orcontraband found during the search. The appeal brings up for review an order ofprotection issued at the time of sentencing.
Ordered that the judgment is modified, on the law, by deleting Condition No. 28from the conditions of probation; as so modified, the judgment is affirmed.
The defendant was sentenced to a definite term of incarceration of one day, to befollowed by a three-year term of probation, following his plea of guilty to assault in thesecond degree. The defendant's conviction stemmed from an October 8, 2021 incident,where he threw boiling water in his wife's face, causing her to sustain redness andwelting on her face. The defendant had no prior criminal history and had voluntarilyenrolled in counseling services following the incident. At sentencing, the Supreme Court,as a condition of probation (Condition No. 28), required the defendant to consent to asearch by a probation officer or a probation officer and his or her agent of his person,vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia,weapons, or contraband found during the search. On appeal, the defendant argues thatthis condition of his probation was improperly imposed.
Pursuant to Penal Law § 65.10 (1), the conditions of probation "shall besuch as the court, in its discretion, deems reasonably necessary to insure that thedefendant will lead a law-abiding life or to assist him to do so." The statute "quite clearlyrestricts probation conditions to those reasonably related to a defendant's rehabilitation"(People v Letterlough, 86 NY2d 259, 265 [1995]).
Here, the defendant was a first-time offender and was not armed with a weapon atthe time he committed the offense. Additionally, the defendant has not been assessed asbeing in need [*2]of alcohol or substance abusetreatment. Under the circumstances, the consent to search condition of probation wasimproperly imposed because it was not individually tailored in relation to the offense,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, 93NY2d 454, 461 [1999]; Peoplev Dranchuk, 203 AD3d 741 [2022]; People v Acuna, 195 AD3d 854, 855 [2021]; People v Mead, 133 AD3d1257, 1258 [2015]).
The defendant's contentions regarding the final order of protection issued at the timeof sentencing are unpreserved for appellate review (see CPL 470.05 [2]; People v Nieves, 2 NY3d310, 316-318 [2004]; People v DeRobertis, 191 AD3d 898 [2021]). Under thecircumstances, we decline to review these contentions in the exercise of our interest ofjustice jurisdiction (see People vDeRobertis, 191 AD3d 898 [2021]; People v Rodriguez, 191 AD3d 807, 808 [2021]; People v Hampton, 186 AD3d855 [2020]). " '[T]he better practice—and best use of judicialresources—is for a defendant seeking adjustment of [an order of protection] torequest relief from the issuing court in the first instance, resorting to the appellate courtsonly if necessary' " (People v Holmes, 206 AD3d 761, 762 [2022], quotingPeople v Nieves, 2 NY3d at 317; see People v DeRobertis, 191 AD3d 898 [2021]; Peoplev Rodriguez, 191 AD3d at 808; People v Hampton, 186 AD3d 855 [2020]). LaSalle, P.J.,Miller, Genovesi and Love, JJ., concur.