People v. Arias

210 A.D.3d 593

179 N.Y.S.3d 47

The PEOPLE of the State of New York, Respondent,

v.Alexander ARIAS, Defendant–Appellant.

16741

Ind. No. 3155/15

Case No. 2019–5231

Supreme Court, Appellate Division, First Department, New York.

Entered November 29, 2022

Twyla Carter, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Brent E. Yarnell of counsel), for respondent.

Acosta, P.J., Kern, Singh, Scarpulla, Pitt, JJ.

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered April 11, 2019, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to five years’ probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring that defendant consent to search by a probation officer of his person, vehicle, or place of abode for "illegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband," and otherwise affirmed.

Defendant made a valid waiver of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), which forecloses his claim that his sentence is excessive. In any event, we find no basis for reducing the sentence.

The court improperly imposed, as a condition of probation, a requirement that defendant consent to a search by his probation officer of his person, vehicle, or place of abode for "illegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband." Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted, and he had no history of offenses involving substance abuse or weapons. Accordingly, the consent to search condition was not reasonably related to defendant's rehabilitation, or necessary to ensure that he will lead a law abiding life (see People v. Dranchuk, 203 A.D.3d 741, 160 N.Y.S.3d 653 [2d Dept. 2022] ; People v. Acuna, 195 A.D.3d 854, 145 N.Y.S.3d 831 [2d Dept. 2021] ; People v. Saraceni, 153 A.D.3d 1559, 1560, 61 N.Y.S.3d 748 [4th Dept. 2017], lv denied 30 N.Y.3d 913, 2018 WL 943649 [2018] ; People v. Mead, 133 A.D.3d 1257, 20 N.Y.S.3d 776 [4th Dept. 2015] ). Because this issue implicates the legality of the sentence imposed, it survives defendant's waiver of the right to appeal (see People v....