PEOPLE v. LOWNDES (2025)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J., at plea;  Ralph A. Fabrizio, J., at sentencing), rendered July 5, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously 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]), which forecloses review of his excessive sentence claim.  In any event, there is no basis for reducing his sentence.

Defendant's challenge to the condition of his probation requiring him to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and [ ] not consort with disreputable people” under Penal Law § 65.10(1) survives defendant's waiver of the right to appeal and does not require preservation (see People v. Alvarez, 233 A.D.3d 619, 620, 224 N.Y.S.3d 62 [1st Dept. 2024]).  However, the court providently deemed this condition “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so,” given that defendant was found in possession of a loaded pistol and small amount of cocaine, and the Department of Probation's recommendation that defendant participate in drug counseling services based on his reportedly daily use of marijuana (see Penal Law § 65.10[1], [2];  see generally People v. Hancarik, 202 A.D.3d 1151, 1152, 160 N.Y.S.3d 497 [2d Dept. 2022]).

Defendant's valid waiver of his right to appeal forecloses review of his constitutional as-applied challenges to the probation condition under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments (see People v. Johnson, 225 A.D.3d 453, 454, 206 N.Y.S.3d 584 [1st Dept. 2024], lv granted 42 N.Y.3d 953, 218 N.Y.S.3d 811, 243 N.E.3d 1253 [2024]).  In any event, the claims are unpreserved, and we decline to review them in the interest of justice (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  see also People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006]).