PEOPLE v. SMITH (2026)

Judgment, Supreme Court, New York County (Simiyon S. Haniff, J.), rendered January 24, 2025, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a probation term of three years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of striking the conditions of probation requiring him to pay the mandatory surcharge and fees imposed at sentencing, to “[s]upport dependents and meet other family responsibilities”, and to “[r]efrain 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 NY3d 545 [2019], cert denied 589 U.S. 1302 [2020] ), which forecloses review of his excessive sentence claim (see People v. Nunez, 220 AD3d 597, 597 [1st Dept 2023], lv denied 41 NY3d 1004 [2024] ).  As an alternative holding, we perceive no basis for reducing the sentence.

Defendant's challenges to certain conditions of probation as not reasonably related to his rehabilitation under Penal Law § 65.10(1) are unpreserved because he failed to raise those claims at the time of sentencing (see People v. Brazeal, ––– NY3d ––––, ––––, 2026 N.Y. Slip Op 03910, *5 [2026] ).  However, we exercise our discretion to review defendant's claims in the interest of justice.

The court providently imposed the probation condition requiring defendant to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (Condition No. 7) (see Penal Law §§ 65.10[1], [2][a], [2][b] ) as he has an extensive criminal history of drug-related offenses, including the underlying offense, and admitted to drug addiction (see People v. Montgomery, 244 AD3d 425, 425 [1st Dept 2025] ).  Although defendant's facial constitutional challenges to this condition survive his valid appeal waiver (see People v. Johnson, ––– NY3d ––––, ––––, 2025 N.Y. Slip Op 06528, *2 [2025] ), they are unpreserved (see People v. Tompson, 245 AD3d 609, 610–611 [1st Dept 2026];  People v. Holguin, 243 AD3d 419, 420 [1st Dept 2025], lv denied 44 NY3d 1066 [2026] ) and we decline to review them in the interest of justice.  To the extent that defendant's constitutional claims against Condition 7 are as-applied challenges, they are foreclosed by his valid appeal waiver (see People v. Tompson, 245 AD3d at 610)

However, we strike the probation conditions requiring defendant to “[s]upport dependents and meet other family responsibilities” (Condition No. 14) and to “[r]efrain 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” (Condition No. 25) as there is no evidence that defendant has children or any gang affiliation (see Tompson, 245 AD3d at 610;  People v Vasquetelles, 241 AD3d 1208, 1209 [1st Dept 2025], lv denied 44 NY3d 1054 [2025] ).  The probation condition requiring payment of the mandatory surcharge and fees imposed at sentencing (Condition No. 10) is also struck as the condition is not reasonably related to defendant's rehabilitation or necessary to ensure that he will lead a law-abiding life (see People v Percy, 234 AD3d 619, 620 [1st Dept 2025] ).  We note that the People do not oppose this relief.  In light of our determination striking Condition No. 25, we need not address defendant's constitutional challenge to the condition.