PEOPLE v. RIVERA (2025)

Judgment, Supreme Court, Bronx County (Seth Steed, J.), rendered February 8, 2024, convicting defendant, upon his plea of guilty, of assault in the third degree, and sentencing him to two years probation, unanimously modified, on the law, to the extent of striking the portion of the condition of probation requiring that defendant consent to a search by a probation officer of his person, vehicle, or place of abode for illegal drugs and drug paraphernalia, and otherwise affirmed.

Defendant validly waived his 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]).  The combination of the court's oral colloquy with defendant, and the written waiver he signed after consultation with counsel, established that defendant had been adequately apprised of the appellate rights he was waiving (see e.g. People v. Castillo, 226 A.D.3d 573, 574, 207 N.Y.S.3d 525 [1st Dept. 2024], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024]).  The waiver forecloses review of his excessive sentence claim (see e.g. People v. Jackson, 225 A.D.3d 547, 548, 207 N.Y.S.3d 484 [1st Dept. 2024], lv denied 41 N.Y.3d 1002, 213 N.Y.S.3d 243, 236 N.E.3d 1261 [2024]).  In any event, we perceive no basis for reducing the sentence.

Defendant's appeal waiver does not foreclose his challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home for weapons, drugs, and drug paraphernalia (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]), which also 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. Johnson, 234 A.D.3d 503, 504, 224 N.Y.S.3d 389 [1st Dept. 2025]).  To the extent this condition authorized the Department of Probation to conduct warrantless searches for weapons, we find that it was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1];  see People v. Hale, 93 N.Y.2d 454, 461, 692 N.Y.S.2d 649, 714 N.E.2d 861 [1999]), “given that he was armed with a sharp object when he committed this violent offense” (Johnson, 234 A.D.3d at 504, 224 N.Y.S.3d 389;  see also People v. Scott, 226 A.D.3d 443, 443–444, 208 N.Y.S.3d 170 [1st Dept. 2024], lv denied 42 N.Y.3d 930, 216 N.Y.S.3d 105, 240 N.E.3d 824 [2024]).

However, the portion of the condition of probation authorizing warrantless searches by a probation officer for illegal drugs and drug paraphernalia “was not reasonably related to defendant's rehabilitation” (People v. Thomas, 233 A.D.3d 568, 569, 223 N.Y.S.3d 649 [1st Dept. 2024], lv denied 43 N.Y.3d 932, 229 N.Y.S.3d 98, 254 N.E.3d 642 [2025]).  Defendant's crime “did not appear connected to the sale or use of drugs” (id.), he was not “under the influence of any substance” when he committed the offense, and he “had no history of offenses involving substance abuse” (Arias, 210 A.D.3d at 594, 179 N.Y.S.3d 47;  see People v. Fernandez, 233 A.D.3d 627, 628, 224 N.Y.S.3d 55 [1st Dept. 2024]).