PEOPLE v. WADE (2025)

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J.), rendered May 15, 2024, convicting defendant, upon his plea of guilty, of attempted assault 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, 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]), which forecloses review of his excessive sentence claim (see People v. Hunt, 225 A.D.3d 501, 501, 205 N.Y.S.3d 384 [1st Dept. 2024], lv denied 42 N.Y.3d 927, 216 N.Y.S.3d 97, 240 N.E.3d 816 [2024]).  As an alternative holding, we perceive no basis for reducing the sentence.

Defendant's challenge to the condition of his probation requiring he “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” under Penal Law § 65.10(2)(a) and (b), as not reasonably related to his rehabilitation, survives his valid appeal waiver 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 [2025];  see also People v. Hakes, 32 N.Y.3d 624, 628 n 3, 94 N.Y.S.3d 221, 118 N.E.3d 883 [2018]).  However, this condition was properly imposed as “reasonably necessary to [e]nsure” that defendant “will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1]).  Defendant abused crack cocaine since the age of 14 years old and was under the influence of the same substance during the underlying offense, and defendant's lengthy criminal history included numerous drug-related convictions (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025];  see also People v. Hancarik, 202 A.D.3d 1151, 1151–1152, 160 N.Y.S.3d 497 [3d Dept. 2022]).

Defendant's valid appeal waiver forecloses review of his unconstitutional as-applied challenges to the probation condition under the First, Fifth, and Fourteenth Amendments (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  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]).  As an alternative holding, defendant's constitutional 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 generally People v. Hanley, 20 N.Y.3d 601, 604, 964 N.Y.S.2d 491, 987 N.E.2d 268 [2013]).