Crimes - Sentence - Probation - Conditions

Judgment, Supreme Court, New York County (Marisol Martinez Alonso, J.), rendered May31, 2024, convicting defendant, upon her plea of guilty, of aggravated driving while intoxicatedas a felony, and sentencing her to five years of probation and imposing a $1,000 fine,unanimously modified, on the law, to the extent of striking the condition of probation prohibitingdefendant from wearing or displaying gang paraphernalia or having any association with a gangor members of a gang if directed by the Department of Probation, and otherwise affirmed.

Defendant validly waived her right to appeal (see People v Thomas, 34 NY3d 545, 559 [2019], certdenied 589 US &mdash, 140 S Ct 2634 [2020]), which forecloses review of her excessivesentence claim (see People v Nunez,220 AD3d 597, 597 [1st Dept 2023], lv denied 41 NY3d 1004 [2024]). In any event,we perceive no basis for reducing the sentence.

Defendant's appeal waiver does not foreclose her challenges to the legality of the conditionsof her probation under Penal Law § 65.10 (1) and do not require preservation (see People v Berkley, 241 AD3d1167, 1167 [1st Dept 2025]). Regarding the condition of probation requiring her to "[a]voidinjurious or vicious habits; refrain from frequenting unlawful or disreputable places; and. . . not consort with disreputable people," the court providently deemed thiscondition reasonably related to defendant's rehabilitation, given that defendant on multipleoccasions drove while highly intoxicated and under the influence of alcohol, and wasrecommended to be placed in a residential treatment program by the Department of Probation(Penal Law § 65.10 [1], [2]; see People v Berkley, 241 AD3d at 1168; People v Lombard, 241 AD3d1126, 1126 [1st Dept 2025]).

However, the probation condition requiring defendant to "[r]efrain from wearing ordisplaying gang paraphernalia and having any association with a gang or members of a gang ifdirected by the Department of Probation" must be stricken because there is no evidence thatdefendant's actions were connected to gang activity or that she had a history of gang membership,rendering this condition neither reasonably related to her rehabilitation nor necessary to ensurethat she leads a law-abiding life (seePeople v Vasquetelles, 241 AD3d 1208, 1209 [1st Dept 2025]; Penal Law§ 65.10 [1]).

Defendant's valid waiver of her right to appeal forecloses review of her constitutionalchallenges to the probation conditions under the First Amendment and the vagueness doctrine ofdue process under the Fifth and Fourteenth Amendments (see People v Lowndes, 239 AD3d 574, 575 [1st Dept 2025]). In anyevent, the claims are unpreserved (seePeople v Cabrera, 41 NY3d 35, 42-51 [2023]), and we decline to review them in theinterest of justice. Concur—Webber, J.P., Friedman, Mendez, Shulman, Hagler, JJ.