PEOPLE v. AVILA (2025)

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J.), rendered August 23, 2023, convicting defendant, upon his plea of guilty, of unauthorized use of a vehicle in the third degree, and sentencing him to three years of probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring that defendant consent to warrantless searches of his person, vehicle, and place of abode for “illegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband,” and otherwise affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559, 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]), which forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence.

Defendant's challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home survives the appeal waiver (see 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]) and does not require preservation (see People v. Hakes, 32 N.Y.3d 624, 628 n. 3, 94 N.Y.S.3d 221, 118 N.E.3d 883 [2018];  People v. Fernandez, 233 A.D.3d 627, 628, 224 N.Y.S.3d 55 [1st Dept. 2024]).  “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” (Arias, 210 A.D.3d at 594, 179 N.Y.S.3d 47).  Accordingly, the consent-search condition was not necessary to ensure that he will lead a law-abiding life (id.;  see Penal Law § 65.10[1]), or reasonably related to defendant's rehabilitation (see Penal Law § 65.10[2][l]), rendering the condition improperly imposed (see Fernandez, 233 A.D.3d at 628, 224 N.Y.S.3d 55;  Arias, 210 A.D.3d at 594, 179 N.Y.S.3d 47).