Crimes - Appeal - Valid Waiver

Crimes - Sentence - Probation - Conditions

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered August6, 2024, convicting defendant of assault in the third degree, and sentencing him to threeyears probation, unanimously modified, on the law and as a matter of discretion in theinterest of justice, to the extent of striking the condition of probation prohibitingdefendant "from wearing or displaying gang paraphernalia" or "having any associationwith a gang or members of a gang if directed by the Department of Probation," andvacating the mandatory surcharge and fees imposed at sentencing, and otherwiseaffirmed.

Defendant validly waived his right to appeal (see People v Thomas, 34 NY3d 545, 559 [2019], certdenied 589 US &mdash, 140 S Ct 2634 [2020]). The totality of the circumstances,including the court's oral colloquy, which sufficiently distinguished the right to appealfrom the rights automatically forfeited by a guilty plea, together with the detailed writtenwaiver, established that the waiver was knowing, intelligent, and voluntary (seeid. at 559-560). The waiver forecloses review of his excessive sentence claim (see e.g. People v Williams, 227AD3d 480, 482 [1st Dept 2024], lv denied 42 NY3d 1022 [2024]). As analternative holding, we perceive no basis for reducing defendant's sentence.

Defendant's appeal waiver does not foreclose his challenges to the legality of theconditions of his probation (seePeople v Lowndes, 239 AD3d 574, 575 [1st Dept 2025]), challenges which alsodo not require preservation (seePeople v Hakes, 32 NY3d 624, 628 n 3 [2018]; People v Alvarez, 233 AD3d619, 620 [1st Dept 2024], lv denied 43 NY3d 961 [2025]). In any event, wereject his challenge to the condition requiring him to "[a]void injurious or vicious habits;refrain from frequenting unlawful or disreputable places; and . . . notconsort with disreputable people" (see Lowndes, 239 AD3d at 575). The courtprovidently deemed this condition reasonably related to defendant's rehabilitation, giventhat he committed his crime while acting in concert with an accomplice, admitted to theDepartment of Probation that he used marijuana daily, and was recommended for drugcounseling services by the Probation Department (see id. at 575; see alsoPenal Law § 65.10 [1], [2]).

However, the probation condition requiring defendant to "[r]efrain from wearing ordisplaying gang paraphernalia and having any association with a gang or members of agang if directed by the Department of Probation" must be stricken. There is no evidencethat defendant's actions were connected to gang activity, or that defendant had a historyof gang membership (see Alvarez, 233 AD3d at 620). Furthermore, defendantunequivocally denied gang affiliation (see United States v Sims, 92 F4th 115,120, 126 [2d Cir 2024]). Thus, the condition "was not reasonably related to defendant'srehabilitation, or necessary to ensure that he will lead a law-abiding life"(Alvarez, 233 AD3d at 620; see Penal Law § 65.10[1]).

Defendant's constitutional challenges to his probation conditions under the FirstAmendment and the vagueness doctrine of due process under the Fifth and FourteenthAmendments are foreclosed by his valid waiver of appeal (see Lowndes, 239AD3d at 575). His constitutional claims are also unpreserved, and we decline to reviewthem in the interest of justice (see People v Cabrera, 41 NY3d 35, 42-51 [2023]).

Based on our own interest of justice powers, we vacate the mandatory surcharge andfees imposed on defendant at sentencing (see People v Chirinos, 190 AD3d 434, 435 [1st Dept2021]). We note that the People do not oppose this relief. In light of this determination,defendant's challenge to the condition of his probation requiring him to pay the surchargeand fees is academic. Concur—Kern, J.P., Scarpulla, Kapnick, Gesmer, Hagler,JJ.