PEOPLE v. LOMBARD (2025)

Judgment, Supreme Court, Bronx County (Jeffrey M. Zimmerman, J.), rendered May 30, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to a term of three years of probation and imposing a crime victim assistance fee of $75, unanimously modified, on the law, to the extent of reducing the amount of the crime victim assistance fee to $25, and otherwise affirmed.

Defendant made a valid waiver of 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 People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]).  The waiver forecloses review of his excessive sentence claim (see e.g. People v. Liriano, 226 A.D.3d 520, 520, 209 N.Y.S.3d 30 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 323, 237 N.E.3d 1263 [2024]).  As an alternative holding, we perceive no basis for reducing defendant's sentence.

Defendant's statutory challenge to the condition of probation requiring him to “avoid injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and not consort with disreputable people” survives his waiver of the right to appeal and does not require preservation (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025];  People v. Alvarez, 233 A.D.3d 619, 620, 224 N.Y.S.3d 62 [1st Dept. 2024], lv denied 43 N.Y.3d 961, 232 N.Y.S.3d 442, 258 N.E.3d 1215 [2025]).  The court providently deemed this condition reasonably related to defendant's rehabilitation, given that he was found in possession of a loaded pistol and admitted to the Department of Probation that he used marijuana on a daily basis (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  see generally Penal Law § 65.10[1], [2]).

Defendant's “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” are “foreclosed by his valid waiver of appeal” (Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  see also People v. Williams, 227 A.D.3d 480, 481, 211 N.Y.S.3d 48 [1st Dept. 2024], lv denied 42 N.Y.3d 1022, 221 N.Y.S.3d 484, 246 N.E.3d 927 [2024]).  His constitutional claims are also 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]).

The amount of the crime victim assistance fee imposed at sentencing exceeded the amount authorized by statute (see People v. Rivera, 183 A.D.3d 415, 121 N.Y.S.3d 595 [1st Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 393, 152 N.E.3d 1194 [2020];  see Penal Law § 60. 35[1][a][i]).  Accordingly, we reduce the crime victim assistance fee to the extent indicated.  We note that the People do not oppose this relief.