PEOPLE v. PERDOMO (2025)

Judgment, Supreme Court, New York County (Laurie Peterson, J., at plea, and Marisol Martinez Alonso, J., at sentencing), rendered October 17, 2023, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a jail term of six months and five years of 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 as a condition of his probation, and otherwise affirmed.

Defendant's waiver of the right to appeal was valid (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.

The court providently imposed, as a condition of probation, a requirement that defendant “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and do not consort with disreputable people.”  Defendant's offense involved him brandishing and firing a gun, while, per his own admission, under the influence of alcohol and drugs.  This condition would reasonably assist defendant in leading a law-abiding life, given his admission of gang affiliation, substance abuse, and expressed desire to change his life and “benefit from his impending probation term” (see Penal Law §§ 65.10[1],[2];  People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]).  Defendant's constitutional challenges to this provision are unpreserved (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.

However, the sentencing court improperly imposed, as a condition of probation, a requirement of payment of the surcharge and other fees imposed at sentencing, as it is not reasonably related to defendant's rehabilitation or necessary to ensure that he will lead a law-abiding life (see People v. Wood, 239 A.D.3d 484, 484, 233 N.Y.S.3d 57 [1st Dept. 2025];  People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept. 2025]).  Given that we are vacating this condition, we need not decide whether it conflicts with CPL 420.35(1).