Crimes - Sentence - Probation - Conditions - Conviction of Third-Degree Rape

Appeal from a judgment of the Steuben County Court (Chauncey J. Watches, J.),rendered April 15, 2024. The judgment convicted defendant, upon his plea of guilty, ofrape in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by striking special conditions 23 and 24 as conditions of probation, and asmodified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of rape in the third degree (Penal Law former § 130.25 [2]).Defendant failed to preserve for our review his contention concerning County Court'sfailure to advise him that he was subject to registration and a risk-level determinationunder the Sex Offender Registration Act ([SORA] Correction Law § 168et seq.; see People vJackson, 26 AD3d 781, 782 [4th Dept 2006], lv denied 6 NY3d 849[2006]; People v Ginter, 23AD3d 1064, 1065 [4th Dept 2005], lv denied 6 NY3d 776 [2006]). To theextent that defendant contends that defense counsel was ineffective for failing to advisehim of the SORA-related consequences of his plea, that contention concerns mattersoutside the record and thus must be raised in a motion pursuant to CPL 440.10 (see People v Gravino, 62AD3d 1259, 1259 [4th Dept 2009], affd 14 NY3d 546 [2010]; People v Keane, 221 AD3d1586, 1588-1589 [4th Dept 2023]).

Defendant next contends that certain conditions of his probation are not authorizedby Penal Law § 65.10. Contrary to the People's assertion, we conclude thatdefendant's contention does not require preservation inasmuch as his challenges to theconditions in question implicate the legality of the sentence (see People v King, 151 AD3d1651, 1652 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; seegenerally People v Letterlough, 86 NY2d 259, 263 n 1 [1995]). We agree withdefendant that the special condition requiring that he "not purchase, possess, or indulgein the use of alcohol or any products that contain alcohol" is not enforceable and must bestricken because it is not related to the probationary goal of rehabilitation (see People v Saraceni, 153AD3d 1559, 1560 [4th Dept 2017], lv denied 30 NY3d 913 [2018]; People v Mead, 133 AD3d1257, 1258 [4th Dept 2015]). For similar reasons, we agree with defendant that thespecial condition requiring him to "[s]ubmit to any test designed to detect the use ofalcohol and/or drugs" is also not enforceable and must be stricken (see Saraceni,153 AD3d at 1560).

We conclude, however, that the special condition requiring that defendant "notassociate with any drug users, drug sellers or convicted criminals unless granted priorpermission by [his] supervising Probation Officer" is a lawful condition of probationconcerning association (see generally Penal Law § 65.10 [2] [b]).Present—Lindley, J.P., Curran, Ogden, Greenwood and Hannah, JJ.