PEOPLE v. BERKLEY (2025)

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J.), rendered September 27, 2023, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a jail term of six months, with 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, we perceive no basis for reducing the 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” pursuant to Penal Law § 65.10(2) 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], lv denied 43 N.Y.3d 961, 232 N.Y.S.3d 442, 258 N.E.3d 1215 [2024]).  Nevertheless, the court providently exercised its discretion in deeming this condition “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]), given his criminal history of trespass, drug possession, and aggression toward others, as well as the Department of Probation's recommendation that defendant participate in anger management services based on the violent nature of his actions in the underlying offense.

Defendant's valid waiver of his right to appeal forecloses review of his facial constitutional challenges to the probation condition under the First Amendment and the vagueness doctrine (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 939, 217 N.Y.S.3d 895, 242 N.E.3d 680 [2024];  People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]).  In any event, those 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];  Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  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]).