PEOPLE v. VASQUETELLES (2025)

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered August 6, 2024, convicting defendant of assault in the third degree, and sentencing him to three years probation, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of striking the condition of probation prohibiting defendant “from wearing or displaying gang paraphernalia” or “having any association with a gang or members of a gang if directed by the Department of Probation,” and vacating the mandatory surcharge and fees imposed at sentencing, 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]).  The totality of the circumstances, including the court's oral colloquy, which sufficiently distinguished the right to appeal from the rights automatically forfeited by a guilty plea, together with the detailed written waiver, established that the waiver was knowing, intelligent, and voluntary (see id. at 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970).  The waiver forecloses review of his excessive sentence claim (see e.g. People v. Williams, 227 A.D.3d 480, 482, 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]).  As an alternative holding, we perceive no basis for reducing defendant's sentence.

Defendant's appeal waiver does not foreclose his challenges to the legality of the conditions of his probation (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]), challenges which also do 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. 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]).  In any event, we reject his challenge to the condition requiring him to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).  The court providently deemed this condition reasonably related to defendant's rehabilitation, given that he committed his crime while acting in concert with an accomplice, admitted to the Department of Probation that he used marijuana daily, and was recommended for drug counseling services by the Probation Department (see id. at 575, 235 N.Y.S.3d 43;  see also Penal Law § 65.10[1], [2]).

However, the probation condition requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” must be stricken.  There is no evidence that defendant's actions were connected to gang activity, or that defendant had a history of gang membership (see Alvarez, 233 A.D.3d at 620, 224 N.Y.S.3d 62).  Furthermore, defendant unequivocally denied gang affiliation (see United States v. Sims, 92 F.4th 115, 120, 126 [2d Cir.2024]).  Thus, the condition “was not reasonably related to defendant's rehabilitation, or necessary to ensure that he will lead a law-abiding life” (Alvarez, 233 A.D.3d at 620, 224 N.Y.S.3d 62;  see Penal Law § 65.10[1]).

Defendant's constitutional challenges to his probation conditions 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 (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).  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]).

Based on our own interest of justice powers, we vacate the mandatory surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 435, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.  In light of this determination, defendant's challenge to the condition of his probation requiring him to pay the surcharge and fees is academic.