PEOPLE v. GUTIERREZ (2026)

Judgment, Supreme Court, Bronx County (Laurence E. Busching, J.), rendered November 28, 2023, convicting defendant, upon his plea of guilty, of course of sexual conduct against a child in the second degree and two counts of endangering the welfare of a child, and sentencing him to an aggregate term of 10 years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of striking the condition of probation requiring him to consent to a search by a probation officer of his person, vehicle, or place of abode and to the seizure of any illegal drugs, drug paraphernalia, guns or other weapons or contraband found, and otherwise affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 NY3d 545, 559 [2019], cert denied 589 U.S. 1302 [2020] ), which forecloses review of his excessive sentence claim (see People v. Diallo, 242 AD3d 612, 612 [1st Dept 2025], lv denied 45 NY3d 970 [2026] ).  In any event, we perceive no basis for reducing the sentence.

Defendant's statutory 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” is unpreserved (see People v. Brazeal, ––– NY3d ––––, ––––, 2026 N.Y. Slip Op 03910, *5 [2026] ), and we decline to review in the interest of justice.  As an alternative holding, we find that 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 his repeated conduct toward young girls, his prior marijuana usage, his agreement to abide by sex offender conditions, and his history of mental health issues (see People v. Andujar, 245 AD3d 529, 529 [1st Dept 2026];  see also People v. Torres, 247 AD3d 577, 579 [1st Dept 2026];  People v. Quinones, 244 AD3d 602, 603 [1st Dept 2025] ).

Defendant's valid waiver of his right to appeal forecloses review of his as-applied constitutional challenges to this probation condition under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments (see People v. Johnson, ––– NY3d ––––, ––––, 2025 N.Y. Slip Op 06528, *2 [2025];  People v. Lowndes, 239 AD3d 574, 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025] ).  In any event, the claim is unpreserved (see People v. Cabrera, 41 NY3d 35, 42–51 [2023] ) and we decline to review it in the interest of justice.  As an alternative holding, we find defendant's constitutional claims to be unavailing (see People v. Andujar, 245 AD3d at 530).

Defendant's challenge to the condition of probation requiring that he consent to searches of his person, home, and vehicle and seizure of any illegal drugs, drug paraphernalia is also unpreserved (see People v. Brazeal, 2026 N.Y. Slip Op *5).  Although unpreserved, we review it in the interest of justice and strike this condition because it is not reasonably related to defendant's rehabilitation (see Falcon, 251 AD3d 409, 409 [1st Dept 2025];  People v. Aquirre, 245 AD3d 421, 422 [1st Dept 2026] ).  We note that the People do not oppose this relief.