PEOPLE v. ANDUJAR (2026)

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J.), rendered July 31, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him to five years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of granting defendant's application for a certificate of relief from disabilities, and otherwise affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 159, 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, there is no basis for reducing the sentence.

Defendant's challenge to the condition of probation requiring him to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and [to] not consort with disreputable people” survives his waiver of the right to appeal and does not require preservation (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025], lv denied 44 N.Y.3d 1012, 244 N.Y.S.3d 516, 271 N.E.3d 718 [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]).  However, the court providently deemed this condition “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 that he possessed an assault weapon, he had a history of mental health issues, and he engaged in aggressive conduct (see People v. Holguin, 243 A.D.3d 419, 419, 245 N.Y.S.3d 35 [1st Dept. 2025];  People v. Rivera, 242 A.D.3d 421, 240 N.Y.S.3d 66 [1st Dept. 2025];  Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).

Regardless of whether or not defendant's constitutional challenge to the same probation condition through his facial challenge to the constitutionality of Penal Law §§ 65.10(2)(a) and (b) under the First, Fifth, and Fourteenth Amendments is waived by the valid appeal waiver (see People v. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op 06528, *2–4 [2025]), the claim is unpreserved (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 it in the interest of justice.  As an alternative holding, the claims are unavailing (see People v. Carrasquillo, 242 A.D.3d 424, 240 N.Y.S.3d 71 [1st Dept. 2025]).  The probation condition provides fair notice to “a person of ordinary intelligence” (People v. Stuart, 100 N.Y.2d 412, 420, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] [internal quotation marks omitted]) that associating with perpetrators of crimes, engaging in criminal behavior or behavior that could cause injury, or frequenting locations where criminal activity occurs is prohibited (see e.g. People v. Thompson, 189 A.D.3d 1969, 1969–1970, 138 N.Y.S.3d 702 [3d Dept. 2020]).

In our discretion and in the interest of justice, we grant defendant's application for a certificate of relief from disabilities (see People v. Fofana, 236 A.D.3d 607, 608, 228 N.Y.S.3d 574 [1st Dept. 2025], lv denied 43 N.Y.3d 1008, 234 N.Y.S.3d 808, 261 N.E.3d 943 [2025];  Correction Law §§ 700[1][a], [c], 702[2][a]-[c]).  As stated in the presentence report, defendant is eligible for this relief, and it would help ensure his continued employment at the senior center, where he has worked for more than 24 years.