PEOPLE v. POINTDEXTER (2025)

Judgment, Supreme Court, Bronx County (Laurence E. Busching, J.), rendered May 14, 2024, convicting defendant, upon his plea of guilty, of attempted sexual abuse in the first degree, and sentencing him to a jail term of 6 months, to be followed by 10 years of probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring him to pay a surcharge and fees, and otherwise affirmed.

Defendant validly waived his 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 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 two conditions of his probation as not reasonably related to his rehabilitation survive his valid appeal waiver and do not require preservation (see People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept. 2025];  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, the condition of defendant's probation requiring that 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) 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 attributed his conduct during the underlying offense to being under the influence of alcohol and another substance, and defendant's lengthy criminal history included several 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 this same 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];  In any event, 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]).

Separately, we find that the imposition of payment of $1,425, comprising the mandatory surcharge, crime victim assistance fee, DNA fee, Sex Offender Registration Act fee, and supplemental sex offender victim fee, as a condition of defendant's probation will not assist in ensuring he leads a law-abiding life and is not reasonably related to his rehabilitation (see People v. Percy, 234 A.D.3d at 620, 226 N.Y.S.3d 60).  Defendant, who is indigent, has not been gainfully employed since, at the latest, 2019, is reliant on public assistance, has been intermittently homeless, and struggles with substance abuse.  Accordingly, we strike that condition.  We note that the People do not oppose this relief.