PEOPLE v. ORTEGA (2026)

Judgment, Supreme Court, Bronx County (Laurence E. Busching, J.), rendered September 24, 2024, convicting defendant, upon his plea of guilty, of unlawful surveillance in the second degree, and sentencing him to five years of probation, unanimously affirmed.

Defendant's statutory and constitutional challenges to his conditions of probation are unpreserved (see People v. Brazeal, ––– NY3d ––––, 2026 N.Y. Slip Op 03910, *5–6, *6 n 7 [2026];  People v. Vasquetelles, 241 AD3d 1208, 1209 [1st Dept 2025], lv denied 44 NY3d 1054 [2025] ), and we decline to review them in the interest of justice.

As an alternative holding, we find defendant's arguments unavailing.  The condition requiring defendant to, among other things, “[a]void injurious or vicious habits” is “reasonably necessary to insure that the defendant will lead a law-abiding life or [ ]assist him to do so” (Penal Law § 65.10[1] ), given that he was referred to alcohol and substance abuse programming and, further, admitted to being under the influence of alcohol and cocaine at the time of the offense, having a history of alcohol and substance abuse, and having associated with peers who encouraged heavy drinking (see People v. Gomez, 248 AD3d 670, 671 [1st Dept 2026];  People v. Hutson, 247 AD3d 654, 655 [1st Dept 2026] ).  Moreover, defendant's constitutional challenge to this condition is unavailing as it “provides fair notice to a person of ordinary intelligence 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” (People v. Andujar, 245 AD3d 529, 530 [1st Dept 2026] [internal quotation marks omitted] ).

Under these circumstances, the condition requiring defendant to keep a curfew is also “appropriate to ameliorate the conduct which gave rise to the offense and to prevent defendant's incarceration” (People v. Ortiz, 246 AD3d 442, 444 [1st Dept 2026] [internal quotation marks omitted] ).  Likewise, the condition requiring defendant to “[c]onsent to a search ․ of his person, vehicle and place of abode ․ and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband found” was providently imposed (see Hutson, 247 AD3d at 655;  People v. Casillas, 245 AD3d 525, 526 [1st Dept 2026] ).

The court also providently imposed the condition requiring defendant to refrain from possessing a firearm, as he is not eligible to possess or purchase a firearm under federal or state law as a convicted felon (see People v. Brown, 248 AD3d 416, 417 [1st Dept 2026] ).

Finally, there is no basis to modify the condition requiring defendant to remain within the jurisdiction of the court unless granted permission to leave (see Penal Law § 65.10[3][b] ).  The basis for the request for modification is to facilitate defendant visiting his son who lives in another jurisdiction.  However, the son lives with his half-sister, the victim of the instant offense, who has a permanent order of protection against defendant.

We perceive no basis for reducing defendant's sentence.