PEOPLE v. RIVERA (2025)

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered March 14, 2023, convicting defendant, upon his plea of guilty, of assault in the third degree, and sentencing him to three years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant made a valid waiver of the 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 his claim that his sentence is excessive (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 [2025]).  In any event, we perceive no basis for reducing the sentence.

Defendant's challenge to the legality of condition 7 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)(2) survives defendant's waiver of the right to appeal and does not require preservation (see People v. Alvarez, 233 A.D.3d at 620, 224 N.Y.S.3d 62).  Nonetheless, we reject this challenge on the merits as this condition was reasonably related to defendant's rehabilitation and necessary to ensure that he will lead a law-abiding life, given his admitted use of alcohol and marijuana, association with “negative peers,” and gang membership (see Penal Law § 65.10[1], [2]).

Defendant raises constitutional challenges to this condition under the First Amendment and as vague and overbroad violating his due process rights under the Fifth and Fourteenth Amendments.  “Defendant's valid waiver of his right to appeal forecloses review of his constitutional challenges to the probation condition ․ [and] the claims are unpreserved” (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025];  see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]).  We also decline to review these challenges in the interest of justice.  As an alternative holding, we find them to be unavailing.

Based upon our own interest of justice powers, we vacate the 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.