| People v Fernandez |
| 2024 NY Slip Op 06671 [233 AD3d 627] |
| December 31, 2024 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Shane Fernandez, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Abigail Everett ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Timothy Lewis, J.), rendered March 29,2023, convicting defendant, upon his plea of guilty, of leaving the scene of an incidentwithout reporting, and sentencing him to three years' probation and a $1,000 fine,unanimously modified, on the law, to the extent of striking the condition of probationrequiring him to consent to search by a probation officer of his person, vehicle, or placeof abode for illegal drugs, drug paraphernalia, guns, or other weapons or contraband, andotherwise affirmed.
Defendant's waiver of the right to appeal was invalid because "the court did not makeclear that the right to appeal is separate and distinct from the numerous other trial rightsautomatically forfeited upon pleading guilty" (People v Ellis, 194 AD3d 428, 428 [1st Dept 2021], lvdenied 37 NY3d 964 [2021]), "mischaracterized the finality of the waiver" (People v Bonilla, 211 AD3d614, 615 [1st Dept 2022]; see also People v Thomas, 34 NY3d 545, 554-556,565-566 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]), and "didnot inquire of defendant whether he understood the written waiver or whether he hadeven read the waiver before signing it" (People v Bradshaw, 18 NY3d 257, 262 [2011]; see also People v Acosta, 133AD3d 506, 507 [1st Dept 2015]). We nonetheless perceive no basis for reducing thesentence.
However, the court improperly imposed, as a condition of probation, a requirementthat defendant consent to a search by a probation officer of his person, vehicle, orresidence for illegal drugs, drug paraphernalia, weapons, or contraband (see People v Hall, 228 AD3d466, 466-467 [1st Dept 2024]). "Defendant was not under the influence of anysubstance or armed with a weapon when he committed the crime of which he wasconvicted" (People v Arias,210 AD3d 593, 594 [1st Dept 2022], lv denied 39 NY3d 1109 [2023]), andhe "had no history of violence or use of weapons" (People v Hall, 228 AD3d at467). His single misdemeanor conviction for marijuana possession preceded the instantoffense by nearly a decade (see People v Arias, 210 AD3d at 594). Thus, theconsent to search condition was not " 'reasonably necessary to insure that thedefendant will lead a law-abiding life or to assist him to do so' " (People v Scott, 226 AD3d443, 443-444 [1st Dept 2024], lv denied 42 NY3d 930 [2024], quoting PenalLaw § 65.10 [1]). We note that defendant's challenge to the conditions ofhis probation did not require preservation (see People v Hakes, 32 NY3d 624, 628 n 3 [2018];People v Letterlough, 86 NY2d 259, 263 n 1 [1995]) and would not beforeclosed even if the appeal waiver were valid (see Arias, 210 AD3d at 594).Concur—Webber, J.P., Moulton, Friedman, Mendez, Shulman, JJ.