| People v Percy |
| 2025 NY Slip Op 00406 [234 AD3d 619] |
| January 28, 2025 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jayson Percy, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Abigail Evertt ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Sexton of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), rendered March20, 2023, convicting defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the seventh degree, and sentencing him to two years of probation,unanimously modified, on the law, to the extent of striking the condition of probationrequiring him to pay $250 in surcharge and fees as a condition of his probation, andotherwise affirmed.
Defendant made a valid waiver of his right to appeal, foreclosing review of his claimthat his sentence is excessive (see People v Thomas, 34 NY3d 545, 559 [2019], certdenied 589 US &mdash, 140 S Ct 2634 [2020]). In any event, we perceive no basisto reduce his sentence.
However, defendant's challenge to the condition of probation requiring that he paythe mandatory surcharge and court fees survives his waiver of the right to appeal (see People v Arias, 210 AD3d593, 594 [1st Dept 2022], lv denied 39 NY3d 1109 [2023]). Penal Law§ 65.10 (1) provides that "[t]he conditions of probation . . .shall be such as the court, in its discretion, deems reasonably necessary to [e]nsure thatthe defendant will lead a law-abiding life or to assist him to do so." Penal Law§ 65.10 (2) (l) allows the court to impose "any other conditions reasonablyrelated to [the probationer's] rehabilitation." In determining whether a condition isreasonably necessary and related to a defendant's rehabilitation, the Court must considerthe particular circumstances of the defendant's case (see People v Hale, 93 NY2d454, 461 [1999]).
Defendant, who is indigent and a first-time offender, apart from a prior violation, hasnot had gainful employment since 2010, is reliant on public assistance, and struggleswith substance abuse. The imposition of the $250 sum, comprising the mandatorysurcharge, crime victim's assistance fees, and DNA fees, as a condition of defendant'sprobation will not assist in ensuring he leads a law-abiding life and is not reasonablyrelated to his rehabilitation. Accordingly, that condition is stricken. We note that thePeople do not oppose this relief. Concur—Webber, J.P., Friedman, Scarpulla,Rosado, O'Neill Levy, JJ.