PEOPLE v. HERNANDEZ (2026)

Judgment, Supreme Court, New York County (Althea Drysdale, J.), rendered August 20, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree and aggravated unlicensed operation of a motor vehicle in the second degree, and sentencing him to concurrent terms of two years of probation and a $1,000 fine, 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. 1302, 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, defendant seeks a reduction in fines and court fees, to which defendant would be entitled if he can establish that he is unable to pay the fine because of indigency (see CPL 420.10(5);  People v. Toledo, 101 A.D.3d 571, 571, 956 N.Y.S.2d 50 [1st Dept. 2012], lv denied 21 N.Y.3d 947, 968 N.Y.S.2d 9, 990 N.E.2d 143 [2013]).

Defendant's challenge to specific conditions of his probation as not reasonably related to his rehabilitation under Penal Law § 65.10(1) survives his valid waiver of his right to appeal and does not require preservation (see 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];  People v. Arias, 210 A.D.3d 593, 594, 179 N.Y.S.3d 47 [1st Dept. 2022], lv denied 39 N.Y.3d 1109, 186 N.Y.S.3d 844, 208 N.E.3d 72 [2023];  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]).  The condition requiring that he “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (Penal Law §§ 65.10[2][a], [b]) was providently imposed as reasonably necessary to ensure that defendant “will lead a law-abiding life or to assist him to do so,” given his possession of forged motor vehicle records here and his lengthy criminal history, which included drug-related and weapon-possession convictions (Penal Law § 65.10[1];  see People v. Pointdexter, 243 A.D.3d 421, 422, 245 N.Y.S.3d 40 [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” should be stricken as not reasonably related to his rehabilitation or necessary to ensure that he leads a law-abiding life (see Penal Law § 65.10[1]) since there is no evidence that defendant's actions were connected to gang activity or that he had a history of gang membership (see People v. Vasquetelles, 241 A.D.3d 1208, 1209, 242 N.Y.S.3d 589 [1st Dept. 2025], lv denied 44 N.Y.3d 1054, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2025]).

Defendant's valid waiver of his right to appeal forecloses review of his as-applied 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. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528 *2 [2025];  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]).  In any event, these 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.  Were we to do so, we would find them unavailing.