PEOPLE v. SEYMORE (2026)

Judgment, Supreme Court, New York County (Michael Gaffey, J.), rendered September 26, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to three years of 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 (see People v. Nunez, 220 A.D.3d 597, 597, 197 N.Y.S.3d 61 [1st Dept. 2023], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 222, 236 N.E.3d 1240 [2024]).  In any event, we perceive no basis for reducing the sentence.

Defendant's challenges to certain conditions of probation under Penal Law § 65.10(1) survive his valid waiver of his right to appeal and do not require preservation (see People v. Berkley, 241 A.D.3d 1167, 240 N.Y.S.3d 22 [1st Dept. 2025]).  Regarding the condition of probation requiring him to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people,” the court providently deemed this condition “reasonably necessary to [e]nsure that the defendant will lead a law-abiding life or to assist him to do so,” given that defendant was convicted for a second felony drug offense (Penal Law §§ 65.10[1], [2];  see People v. Berkley, 241 A.D.3d at 1168, 240 N.Y.S.3d 22;  People v. Lombard, 241 A.D.3d 1126, 1126, 242 N.Y.S.3d 4 [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 because there is no evidence that defendant's actions were connected to gang activity or that he had a history of gang membership, rendering this condition neither reasonably related to his rehabilitation nor necessary to ensure that he leads a law-abiding life (see People v. Vasquetelles, 241 A.D.3d 1208, 1209, 242 N.Y.S.3d 589 [1st Dept. 2025];  Penal Law § 65.10[1]).

Defendant's valid waiver of his right to appeal forecloses review of his constitutional challenges to the probation conditions under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]).  In any event, the claims are unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to review them in the interest of justice.