PEOPLE v. BERRY (2025)

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J.), rendered January 12, 2024, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of probation of five years, unanimously 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];  People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016]), which forecloses his claim that his sentence is excessive.  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” under Penal Law § 65.10(1) as unrelated to his rehabilitation is an issue that “implicates the legality of the sentence imposed” (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]).  Thus, “it survives [his] waiver of the right to appeal and does not require preservation for appellate review” (Alvarez, 233 A.D.3d at 620, 224 N.Y.S.3d 62;  see People v. Hakes, 32 N.Y.3d 624, 628 n. 3, 94 N.Y.S.3d 221, 118 N.E.3d 883 [2018]).  Nevertheless, where defendant was found in possession of a loaded gun and ammunition, and given the Department of Probation's concerns that defendant was “engaging in disreputable behavior with the potential for dangerous consequences that poses a potential risk to public safety,” the court providently concluded that this condition was “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];  see People v. Letterlough, 86 N.Y.2d 259, 263, 631 N.Y.S.2d 105, 655 N.E.2d 146 [1995];  People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]).

Defendant's valid waiver of his right to appeal forecloses review of his constitutional challenges to the probation condition (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  People v. Johnson, 225 A.D.3d 453, 454–455, 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]).  In addition, his 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).