PEOPLE v. QUINONES (2025)

Judgment, Supreme Court, Bronx County (Laurence E. Busching, J.), rendered January 16, 2024, convicting defendant, upon his plea of guilty, of endangering the welfare of a child, and sentencing him to a term of three years’ probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring him to pay the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, foreclosing review of his claim that his sentence is excessive (see People v. Thomas, 34 N.Y.3d 545, 567, 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]).  In any event, we perceive no basis to reduce his sentence.

Defendant's challenges to probation condition 7, requiring him to “[a]void injurious or vicious habits” and “refrain from frequenting unlawful or disreputable places or consorting with disreputable persons” (Penal Law § 65.10[2][a], [b]), and to condition 10, requiring him to pay the mandatory surcharge and court fees, survive his waiver of the right of appeal and do not require preservation (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025];  People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept. 2025]). The court providently exercised its discretion in deeming condition 7 “reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1]), given that defendant reported daily marijuana use and agreed to abide by sex offender conditions (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).

However, under the particular circumstances of this case, requiring payment of the surcharge and fees is not “reasonably related to [defendant's] rehabilitation” (Penal Law § 65.10[2][l];  see Percy, 234 A.D.3d at 620, 226 N.Y.S.3d 60).  Defendant, who is indigent and a first-time offender, is reliant on public assistance and has not been gainfully employed for several years.  Accordingly, that condition is stricken.  We note that the People do not oppose this relief.

Defendant's waiver also forecloses his constitutional as-applied challenges to probation condition 7 under the First Amendment and under the vagueness doctrine of due process under the Fifth and Fourteenth Amendments (see People v. Lombard, 241 A.D.3d 1126, 1126, 242 N.Y.S.3d 4 [1st Dept. 2025]).  In any event, defendant's constitutional claims are unpreserved because he failed to raise them before the trial court (see People v. Cabrera, 41 N.Y.3d 35, 42, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to reach them in the interest of justice.