PEOPLE v. HOLGUIN (2025)

Judgment, Supreme Court, New York County (Laura A. Ward, J., at plea;  Ruth Pickholz, J., at sentencing), rendered February 16, 2024, convicting defendant of attempted assault in the second degree, and sentencing him to 5 years probation, unanimously modified, on the law, 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 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]), which forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence.

Defendant's challenges to two of his probation conditions as unrelated to his rehabilitation do not require preservation and survive his waiver of the right to appeal (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 this regard, the court providently deemed the condition of defendant's 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)(a) and (b), as “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 history of mental health issues, substance abuse, the Department of Probation's recommendation that he participate in substance abuse treatment, and his aggressive conduct and use of a weapon in the instant case (see e.g. People v. Lombard, 241 A.D.3d 1126, ––– N.Y.S.3d –––– [1st Dept. 2025];  People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]).

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, as there is no evidence that defendant's crime was connected to any gang activities or that he has any history of gang membership or gang affiliation (see People v. Vasquetelles, 241 A.D.3d 1208, ––– N.Y.S.3d –––– [1st Dept. 2025];  cf.  Alvarez, 233 A.D.3d at 620, 224 N.Y.S.3d 62).  Accordingly, this condition was not reasonably necessary to further defendant's rehabilitative prospects based on his background and proclivities (see People v. Hale, 93 N.Y.2d 454, 461–462, 692 N.Y.S.2d 649, 714 N.E.2d 861 [1999];  see also United States v. Sims, 92 F.4th 115, 120, 126–129 [2d Cir. 2024]).

Defendant's valid appellate waiver forecloses review of his facial constitutional challenges to the probation conditions under the vagueness doctrine and the First Amendment (see People v. Berkley, 241 A.D.3d 1167, 240 N.Y.S.3d 22 [1st Dept. 2025]).  In any event, these 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];  see generally People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006]).