Crimes - Sentence - Probation - Conditions - Consent to Search

Judgment, Supreme Court, Bronx County (Joseph McCormack, J., at plea; NaitaSemaj, J., at sentencing), rendered November 18, 2022, convicting defendant ofoperating a motor vehicle while under the influence of alcohol, and sentencing him tothree years of probation, modified, on the law, to the extent of striking the condition ofprobation requiring him to consent to a search by a probation officer of his person,vehicle, or place of abode and the seizure of any illegal drugs, drug paraphernalia, gunsor other weapons or contraband found, and otherwise affirmed.

On December 20, 2020 police officers found defendant asleep behind the steeringwheel of a car on the side of the road with the keys in the ignition and the enginerunning. Defendant allegedly had bloodshot eyes, slurred speech, the odor of alcoholemanating from his breath, and a bottle of tequila on the passenger seat. He was chargedwith three counts of operating a motor vehicle while under the influence of alcohol(Vehicle and Traffic Law § 1192 [1], [3]). Defendant had previously twicebeen convicted of the same offense.

The People offered defendant a conditional plea agreement under which he wouldplead guilty to both the class E felony and class A misdemeanor offenses, wear aSCRAM bracelet for 120 days without violations, complete the Victim Impact Panel andDrivers' Accountability Program, not be arrested or receive any moving violations ordriving suspensions, and install an ignition interlock device (IID) if he possessed avehicle. The plea court explained that if defendant complied with the conditionalagreement, it would vacate the plea to the class E felony and sentence him on the class Amisdemeanor to three years of probation, three years' use of an IID, and a fine. Asrelevant to this appeal, the plea court also stated defendant would be required to "consentto a search of [his] person or [his] home to allow the Probation Department to adequatelysupervise [him]." Defendant affirmed that he understood.

Defendant successfully complied with the conditional plea agreement and wassentenced as promised. In imposing the conditions of defendant's probationary sentence,the sentencing court used a form containing a list of 32 different conditions. Eachcondition had a corresponding box that could be checked by the court, which wouldimpose that given condition. Among others, the sentencing court in this case checkedbox 28, which required defendant to "consent to a search by a Probation Officer. . . of his/her person, vehicle and place of abode . . . and theseizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon orcontraband found." This consent-search condition was not discussed at sentencing andnot requested by the Department of Probation. On this appeal, defendant challenges thesentencing court's imposition of the consent-search condition. Defendant does not objectto the other conditions imposed by the court, including the condition outlined in box 1,which requires him to permit a probation officer to visit him at his residence or elsewhere.

As an initial matter, defendant's challenge to the consent-search condition is properlybefore this Court. Contrary to the People's contention, defendant's challenge is exemptedfrom preservation as it "involves the essential nature of the right to be sentenced asprovided by law" (People vHakes, 32 NY3d 624, 628 n 3 [2018]).

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." Moreover, the statuterequires probation conditions to be reasonably related to a defendant's rehabilitation andto be individually tailored in relation to the offense committed (see People vHale, 93 NY2d 454, 462 [1999]; People v Letterlough, 86 NY2d 259, 265[1995]). In conducting this inquiry, this Court must consider the particular circumstancesof the defendant's case (seePeople v Percy, 234 AD3d 619, 620 [1st Dept 2025]).

We have recently issued a number of decisions clarifying this standard and itsapplication to the specific consent-search condition at issue in this case. In People v Arias (210 AD3d593 [1st Dept 2022], lv denied 39 NY3d 1109 [2023]), the defendantpleaded guilty to and was convicted of attempted robbery in the second degree. We heldthat the consent-search condition was not reasonably related to the defendant'srehabilitation or necessary to ensure that he would lead a law-abiding life because thedefendant was not under the influence of any substance or armed with a weapon when hecommitted the crime of which he was convicted and because he had no history ofoffenses involving substance abuse or weapons (id. at 594; see also People v Hall, 228AD3d 466, 467 [1st Dept 2024]).

In People v Fernandez(233 AD3d 627, 627 [1st Dept 2024]), the defendant pleaded guilty to and wasconvicted of leaving the scene of an incident without reporting. Although the defendanthad previously been convicted of marijuana possession, we held that the consent-searchcondition was not reasonably necessary to ensure that the defendant would lead alaw-abiding life or to assist him to do so because the marijuana conviction "preceded theinstant offense by nearly a decade" (id. at 628). We also reaffirmed theimportance of analyzing the reasonableness of the consent-search condition in light ofthe underlying offense, noting as we did in Arias that "[d]efendant was not underthe influence of any substance or armed with a weapon when he committed the crime ofwhich he was convicted" (see id., quoting Arias, 210 AD3d at 594[internal quotation marks omitted]).

Conversely, we have upheld the consent-search condition in cases where thedefendant used a weapon to commit the crime and had a history of violence and use ofweapons (see People vScott, 226 AD3d 443, 443-444 [1st Dept 2024], lv denied 42 NY3d 930[2024] [defendant convicted of third-degree assault for using a cane to strike his intimatepartner]), and where the Department of Probation determined the defendant to be in needof substance abuse treatment (see People v Velardo, 228 AD3d 520, 521 [1st Dept 2024],lv denied 42 NY3d 930 [2024]).

Applying the standard in a manner consistent with these recently decided cases andconsidering the particular circumstances of defendant's case, we hold that theconsent-search condition imposed by the sentencing court is not reasonably related todefendant's rehabilitation or necessary to ensure that he will lead a law-abiding life.Initially, it is undisputed that defendant was not armed with a weapon when hecommitted the crime of which he was convicted. Defendant also has no history ofviolence or use of weapons and has never been convicted of an offense involvingweapons (see Arias, 210 AD3d at 594; Hall, 228 AD3d at 467).

Moreover, defendant's past use of illegal substances does not support the impositionof the consent-search condition. Defendant has never been convicted of an offenseinvolving illegal substances (see Fernandez, 233 AD3d at 628). Whiledefendant's presentence report (PSR) states that he had experimented with marijuana,PCP, crack and heroin in the past "to take the pain away," the record does not specify forhow long, how often or how recently he experimented with these substances and doesnot demonstrate, as the dissent suggests, that defendant has a history of abusing illegaldrugs. Additionally, although the Department of Probation indicated that "closemonitoring" of defendant was appropriate, it did not determine him to be in need oftreatment for abuse of illegal substances and his PSR indicated that he had beendrug-free for one to five years prior to committing the instant offense (cf.Velardo, 228 AD3d at 521). Accordingly, the circumstances of defendant's past useof illegal substances do not support a finding that the imposition of the consent-searchcondition was reasonably necessary to ensure that defendant will lead a law-abiding lifeor to assist him to do so, particularly where the frequency and magnitude of his use ofillegal substances are unknown (see Penal Law § 65.10 [1]).

Finally, although defendant was driving while under the influence of alcohol, hadpreviously twice been convicted of driving while intoxicated, and admitted to theDepartment of Probation that he began to consume alcohol when he was 10 years old, hisalcohol use does not support the imposition of the consent-search condition as written.There are certain limited circumstances where alcohol becomes contraband for thepurposes of the consent-search condition, such as when it is open and located in arunning vehicle (see Vehicle and Traffic Law § 1227 [1]).However, the consent-search condition is not limited to conform to these specificcircumstances. Rather, the condition broadly authorizes warrantless searches ofdefendant's person, vehicle and place of abode. This extensive reach into areas ofdefendant's life where he may legally possess and consume alcohol is not reasonablyrelated to defendant's rehabilitation or individually tailored in relation to the offensecommitted, especially considering that defendant will still be "checked up on" pursuantto the condition permitting unannounced visits from a probation officer at his residenceor elsewhere, which he does not challenge (Hale, 93 NY2d at 462).

Contrary to defendant's argument, the court's failure to "orally pronounce theconsent-search condition at plea or sentencing did not render it invalid since he wasprovided a written copy of all conditions of probation" (Scott, 226 AD3d at443-444; CPL 410.10 [1]).

We perceive no basis for reducing defendant's sentence and decline to vacate the fineand fees imposed on him at sentencing in the interest of justice.

Our decision does not hold, as the dissent suggests, that either a recommendation fortreatment by the Department of Probation or a prior related conviction is necessary for adefendant's substance abuse history to support imposition of the consent-searchcondition. However, we agree with our dissenting colleague that the relevant inquiryrequires consideration of the totality of the circumstances and that no one factor isdispositive. Consistent with these requirements, our ultimate holding is based on acomprehensive evaluation of the record on appeal, which is guided by binding precedentset forth in decisions of this Court and the Court of Appeals. Concur—Kern, J.P.,González, Mendez, JJ.

Kennedy and Rodriguez, JJ., dissent in part in a memorandum by Rodriguez, J., asfollows: Supreme Court's imposition of the consent-search condition at issue was properbecause it was supported by the facts of the instant conviction for driving whileintoxicated (Vehicle and Traffic Law § 1192 [3]) and Mr. Andrus's historyof substance abuse. I would therefore affirm.

Penal Law § 65.10 (1) provides that "[t]he conditions of probation andof conditional discharge shall be such as the court, in its discretion, deems reasonablynecessary to insure that the defendant will lead a law-abiding life or to assist him to doso." The statute also allows the court to require a defendant to "[s]atisfy any otherconditions reasonably related to his rehabilitation" (Penal Law § 65.10 [2][l]; see Penal Law § 65.10 [5] [court may "require that thedefendant comply with any other reasonable condition as the court shall determine to benecessary or appropriate to ameliorate the conduct which gave rise to the offense or toprevent the incarceration of the defendant"]).

As the Court of Appeals has recognized, a defendant who enters a guilty plea inexchange for a sentence of probation, as here, has "negotiated an arrangement by which[they] would be able to remain at liberty in exchange for a surrender of some of [their]rights, including a diminished expectation of privacy" (People v Hale, 93 NY2d454, 464 [1999]).^[FN1] When imposing a sentence ofprobation, Supreme Court thus holds "broad authority to impose a myriad ofprobationary requirements" (People v Hakes, 32 NY3d 624, 632 [2018]).

As relevant here, on appeal Mr. Andrus argues among other things that theconsent-search condition imposed by Supreme Court was not reasonably related to hisrehabilitation. In response, the People contend that the condition is reasonably supportedinasmuch as it is based on the facts of the instant conviction and Mr. Andrus's admittedhistory of drug and alcohol abuse. The People also note that Mr. Andrus was convictedpreviously for similar conduct.

For the most part, I agree with the majority's recitation of applicable authority. Forexample, the majority explains that in People v Fernandez (233 AD3d 627 [1st Dept 2024]) andPeople v Arias (210 AD3d593 [1st Dept 2022], lv denied 39 NY3d 1109 [2023]), this Court held thatthe imposition of the consent-search condition was improper since the defendants were"not under the influence of any substance or armed with a weapon when [they]committed the crime[s] of which [they] w[ere] convicted" (Fernandez, 233 AD3dat 628, quoting Arias, 210 AD3d at 594). Imposition of the condition was alsoimproper in those cases because the defendants "had no history of violence or use ofweapons" (Fernandez, 233 AD3d at 628, quoting People v Hall, 228 AD3d466, 467 [1st Dept 2024]) and, moreover, they "had no history of offenses involvingsubstance abuse or weapons" (Arias, 210 AD3d at 594).

Nonetheless, as the majority further observes, we have held the condition to beproperly imposed where the crime involved use of a weapon (see People v Scott, 226 AD3d443, 443-444 [1st Dept 2024], lv denied 42 NY3d 930 [2024]; see also People v Anderson,233 AD3d 549, 550 [1st Dept 2024]), where the defendant had a history of violenceand use of weapons (see id.), and where the Department of Probation determinedthe defendant to be in need of substance abuse treatment (see People v Velardo, 228AD3d 520, 521 [1st Dept 2024], lv denied 42 NY3d 930 [2024]).

Accordingly, in general, a consent-search condition may properly be imposed ifweapon use or substance abuse is reasonably related to the conduct underlying theoffense, previous convictions, or a defendant's more general history. With respect to priorconvictions or a defendant's indicated history, considerations include the nature of theprior conduct as it relates to the instant offense as well as the amount of time that haspassed (see e.g. Fernandez, 233 AD3d at 628 [condition's relationship torehabilitation not established by decade-old marijuana possession conviction]).

In close cases, however, subtleties make all the difference. Here, I disagree with themajority's analysis in several respects. First, the majority applies a heightened standardthat, in any event, the condition at issue satisfies. Relatedly, the majority's reasoningappears to draw what is in this context an inapposite distinction between abuse of legaland illegal substances. Finally, the majority unduly emphasizes whether the defendanthas specific prior convictions and whether the Department of Probation has formallyrecommended substance abuse treatment. The majority consequently reaches aconclusion here that is, in my view, a departure from the fundamental standard.

In reviewing the lawfulness of a probation condition, we examine whether thecondition imposed was "tailored to suit the probationer[ ] and . . .reasonably related to [their] rehabilitation" (Hale, 93 NY2d at 461 [internalquotation marks omitted]; see Penal Law § 65.10 [1] ["reasonablynecessary to insure that the defendant will lead a law-abiding life or to assist him to doso"]; see also Penal Law § 65.10 [2] [l]; [5]). The applicablestandard's leniency corresponds to the nature of probation as an alternative toincarceration in appropriate circumstances (see e.g. Hakes, 32 NY3d at 630 ["Thedecision to sentence a defendant to probation as an alternative to jail or prison reflects adetermination by the sentencing court that both society and the defendant would be betterserved by the individual's closely supervised release into the community, provided thatcertain reasonable conditions are met"]; see also id. at 632 [expressing concernfor contrary holding that would cause sentencing courts to, "in many instances, no longerview release into the community as a viable alternative to incarceration"]). In otherwords, the standard reflects the general objective that courts should not find themselveshamstrung to impose incarceratory terms where probation, with reasonable conditions,would suffice.

Here, the majority's examination looks not to a relationship between the condition,the offense, and Mr. Andrus as a whole, but instead improperly applies a heightenedstandard of scrutiny in isolation. As an initial matter, the majority indeed acknowledgesthat features of the challenged condition are sufficiently supported by the facts presented(see e.g. majority op at 451 ["There are certain limited circumstances where alcohol becomes contraband for thepurposes of the consent-search condition"]). Yet the majority proceeds to examine allaspects of the condition without context and, in so doing, finds some unsupported in itsview. Accordingly, it concludes, the condition should be stricken in itsentirety.^[FN2] Themajority thus fails to recognize the leniency of the applicable standard, the nature ofprobation as an alternative to incarceration, and the discretion afforded SupremeCourt.

Even if this heightened standard were correct, the majority's analysis and conclusionare contrary to binding authority and the facts presented. On the first measure, the Courtof Appeals has held that the consent-search condition may be reasonably related to adefendant's rehabilitation even where not limited to the location or kind of locationimplicated by the conviction at issue. In Hale, the consent-search condition waswarranted for the defendant's vehicle and home even though the offense giving risethereto was "having caused the death of a young woman who was swimming when hestruck her with his motor boat, which he operated while he was impaired"(Hale, 93 NY2d at 457 [emphasis added]; see id. at 457-459).

Additionally, the relevant facts support the condition's propriety. As the majoritynotes, the condition at issue required Mr. Andrus to "consent to a search . . .of his/her person, vehicle and place of abode . . . and the seizure of anyillegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband found."Concerning legal and illegal substances in this context, when Mr. Andrus was arrested hehad an open bottle of alcohol in his running vehicle's passenger seat. Although alcohol inand of itself does not constitute "contraband," it so becomes when open and located in arunning vehicle (see Vehicle and Traffic Law § 1227 [1] ["Thedrinking of alcoholic beverages or consumption of cannabis, or the possession of an opencontainer containing an alcoholic beverage, in a motor vehicle located upon the publichighways or right-of-way public highway is prohibited. Any operator or passengerviolating this section shall be guilty of a traffic infraction"]). Accordingly, theconsent-search condition is proper inasmuch as it addresses, among other places, Mr.Andrus's vehicle. Importantly, the underlying offense and Mr. Andrus's criminal recorddemonstrate that he has a history of engaging with alcohol in a manner such that itspossession becomes unlawful.

More broadly, the presentence report reflects that Mr. Andrus's past substance abusehas, at times, had slight regard for substances' legal statuses. As to Mr. Andrus's prior useof illegal substances, the presentence report contains possibly conflicting information. Inparticular, it notes that Mr. Andrus reported he "experimented with Marijuana,PCP (Angel Dust); Crack; and Heroin to take the pain away" (emphasisadded).^[FN3]Genuine experimentation, on the one hand, is just that: to see what it's like. Addressingpain, on the other, is purposeful: to self-medicate. Leaving aside whether the presentencereport's use of punctuation should be parsed out for further fine distinctions, it is clearthat at least some of Mr. Andrus's illegal substance use was for the purpose ofself-medication—the same acknowledged purpose for his abuse ofalcohol.^[FN4] In anyevent, Mr. Andrus's presentence interview and series of offenses demonstrate a history ofdangerous decision making while intoxicated or under the influence of mind-alteringsubstances. I accordingly conclude that Mr. Andrus's reported history of illegal substanceabuse—combined with the instant conviction for driving while intoxicated, twoprior convictions for similar offenses, and history of alcohol abuse—thuspermitted Supreme Court to properly impose the condition as part of a nonincarceratorysentence.^[FN5] Themajority's opinion also diverges from relevant authority to the extent its analysis, if notits disclaimer, suggests that either a recommendation for treatment or a prior relatedconviction is necessary for a defendant's substance abuse history to support imposition ofthe condition. To be sure, a reasonable relationship between the consent-search conditionand a defendant's rehabilitation is strongly indicated in cases where the Department ofProbation has formally recommended substance abuse treatment. The presence of such arecommendation is not a requirement, however, nor could it be given the possibility thatthe record might otherwise demonstrate the condition's reasonableness (seegenerally Penal Law § 65.10). Indeed, here, Mr. Andrus's substanceabuse history supports the condition's imposition notwithstanding the absence of a formalsubstance abuse treatment recommendation.^[FN6] Specifically, the record demonstratesthat Mr. Andrus's history of substance abuse includes (1) repeatedly driving whileintoxicated; (2) abuse of both alcohol and illegal drugs; (3) relapse as reflected in thepresentence report;^[FN7] and (4) at 55 years of age, a longestperiod of abstinence of from one to five years. Further, an approach requiring an illegalsubstance abuse-related conviction^[FN8] would be incongruent with the realitiesof the plea-bargaining process, since a defendant may be arrested or indicted for weapon-or substance-related offenses, among others, but ultimately accept a plea deal resulting ina conviction not expressly so related. Imposing a requirement as suggested by themajority's analysis would thus improperly raise the controlling standard and, moreover,potentially limit nonincarceratory alternatives in a manner not contemplated by relevantauthority or the plain language of Penal Law § 65.10 (see generallyHakes, 32 NY3d at 632). It should not go unmentioned that Mr. Andrus has madesignificant strides. In particular, at the time Mr. Andrus was interviewed by theDepartment of Probation, he had successfully completed six months of alcohol treatmentand remained in the aftercare program at the Lincoln Recovery Center. Additionally, hewas enrolled for a year at a program that provided him with Vivitrol, a daily medicationthat treats alcohol dependency.^[FN9] The steps Mr. Andrus has taken toachieve sobriety are undoubtedly commendable, and my conclusion here should ofcourse not be read to undermine his achievements in any respect. Ultimately, however,Supreme Court's imposition of the condition was proper.

In sum, contrary to the majority's approach, the Court of Appeals and this Court haveapplied Penal Law § 65.10 in a manner supporting consideration of thetotality of the circumstances. This includes, if relevant, the nature and age of any priorconvictions as they may relate to the instant offense (see e.g. Fernandez, 233AD3d at 628). In addition, it includes consideration of a defendant's history of conductthat, though relevant to an evaluation of rehabilitation and future law abidingness, maynot have ultimately resulted in a weapon- or substance-related conviction or even systeminvolvement at all (see Penal Law § 65.10 [1], [2] [l]; [5];Hale, 93 NY2d at 461 [conditions properly imposed "to further defendant'srehabilitative prospects, given his background, history, and proclivities"]; see also e.g. People v Percy,234 AD3d 619, 620 [1st Dept 2025] ["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"]; cf. People v Alvarez, 233AD3d 619, 620 [1st Dept 2024] ["Defendant did not commit the instant crime, orhave a history of misconduct, on public transportation. Accordingly, the prohibitionfrom using or entering any public transportation conveyance or facility was notreasonably related to defendant's rehabilitation, or necessary to ensure that he will lead alaw-abiding life" (emphasis added)]). Stated differently, no one factor should necessarilybe dispositive.

In the present case, Mr. Andrus's strides to achieve sobriety warrant our expresscredit. That said, the imposition of probation conditions is within the court's discretion asit considers a nonincarceratory sentence, and the conditions imposed need only be"reasonably related to defendant's rehabilitation" (Hale, 93 NY2d at 462;see Penal Law § 65.10). The majority's heightened standard thusrisks terms of unnecessary imprisonment to the detriment of Supreme Court's discretionto craft an appropriate sentence and the condition of State coffers (see e.g. People v Greene, 41NY3d 950, 954 n 1 [2024] [Wilson, C.J., concurring] [approximate cost of stateincarceration is $115,000 per year]), not to mention defendants like Mr. Andrus forwhom neither Supreme Court, the majority, nor I believe a term of imprisonment iswarranted.

Under the circumstances presented, the consent-search condition reasonably supportsdefendant's rehabilitation, and I would therefore affirm.