PEOPLE v. AMPARO (2025)

Judgment, Supreme Court, Bronx County (Connie Morales, J.), rendered July 17, 2023, convicting defendant, upon his plea of guilty, of auto stripping in the third degree, and sentencing him to three 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.

We find defendant's appeal waiver invalid and unenforceable because the court did not adequately explain the nature of the appellate rights defendant was waiving, that the right to appeal was separate and distinct from the rights automatically forfeited upon a guilty plea or the limited claims that survive an appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Floyd, 220 A.D.3d 497, 197 N.Y.S.3d 507 [1st Dept. 2023];  People v. Ramos, 122 A.D.3d 462, 464, 997 N.Y.S.2d 24 [1st Dept. 2014]).  The written waiver of appeal defendant signed “[was] not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” (People v. Oquendo, 105 A.D.3d 447, 448, 963 N.Y.S.2d 71 [1st Dept. 2013] [internal quotation marks omitted], lv denied 21 N.Y.3d 1007, 971 N.Y.S.2d 259, 993 N.E.2d 1282 [2013]).

Although defendant's waiver of the right to appeal was invalid, defendant's sentence was not excessive.  However, the special probation condition permitting warrantless searches of defendant's home, person and vehicle was not reasonably related to defendant's rehabilitation since the crime of which defendant was convicted did not involve weapons or drugs (People v. Hall, 228 A.D.3d 466, 466–467, 211 N.Y.S.3d 376 [1st Dept. 2024];  People v. Arias, 210 A.D.3d 593, 594, 179 N.Y.S.3d 47 [1st Dept. 2022], lv denied 39 N.Y.3d 1109, 186 N.Y.S.3d 844, 208 N.E.3d 72 [2023]).  Contrary to the People's contention, a defendant's challenge to the condition of probation requiring consent to searches of their person, vehicle and place of abode by a probation officer for drugs, drug paraphernalia, weapons and contraband would have survived the appeal waiver had it not been invalid (see People v. Velardo, 228 A.D.3d 520, 521, 211 N.Y.S.3d 382 [1st Dept. 2024], lv denied 42 N.Y.3d 930, 216 N.Y.S.3d 112, 240 N.E.3d 831 [2024]).