PEOPLE v. KEMP (2026)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Emilia (Mila) King–Musza of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Christopher P. Marinelli of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Seth Steed, J.), rendered January 24, 2025, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second 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 striking the conditions of probation requiring defendant to submit to any drug or alcohol assessment and/or tests if directed by the Department of Probation (Condition No. 15);  undergo medical/psychiatric treatment and/or remain in a specified institution if directed by the Department of Probation (Condition No. 22);  participate in an alcohol, substance abuse, intervention, domestic violence or alternative to violence program as directed by the Department of Probation (Condition No. 23);  refrain 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 (Condition No. 24), 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. Ramirez, 226 AD3d 625, 625 [1st Dept 2024], lv denied 42 NY3d 940 [2024] ).  In any event, we perceive no basis to reduce defendant's sentence.

Defendant challenges certain conditions of his probation as not reasonably related to his rehabilitation under Penal Law § 65.10(1).  Upon reviewing his claims, regardless of whether they were preserved (see People v. Brazeal, — NY3d —, —, 2026 N.Y. Slip Op 03910, *5 [2026] ) we exercise our discretion to review these challenges in the interest of justice.  None of the four conditions that defendant challenged were “reasonably related to defendant's rehabilitation, or necessary to ensure that he will lead a law-abiding life” (People v. Vasquetelles, 241 AD3d 1208, 1209 [1st Dept 2025], lv denied 44 NY3d 1054 [2025];  see Penal Law § 65.10[1] ).

There is no evidence that defendant had a history of gang affiliation or that his offense was connected to gang activity, and as such the condition related to a prohibition on gang affiliation (Condition No. 24) must be stricken (see Vasquetelles, 241 AD3d at 1209).

Considering defendant's denial of illegal drug use, the Department of Probation's assessment of defendant for substance abuse with no recommendation for further assessment or treatment, and the fact that there is no evidence defendant's offense involved drug or alcohol use, conditions related to drug and alcohol testing and treatment (Condition Nos. 15 and 23) must also be stricken (see People v. Ortiz, 246 AD3d 442, 444 [1st Dept 2026];  People v. Balogh, 245 AD3d 572, 574 [1st Dept 2026], lv denied, 45 NY3d 1014 [2026] ).

The Department of Probation assessed defendant for mental health issues and found none, and defendant reported no history of such issues, and thus the condition requiring him to undergo medical/psychiatric treatment (Condition No. 22) is not applicable to defendant or reasonably related to his rehabilitation (see People v. Rivas, 248 AD3d 692, 694 [1st Dept 2026] ).

Defendant's valid appeal waiver forecloses review of his as-applied constitutional challenge to Condition No. 24 under the First, Fifth, and Fourteenth Amendments (see People v. Lowndes, 239 AD3d 574, 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025] ).  To the extent that defendant's claims are facial constitutional challenges, they survive his appeal waiver (see People v. Johnson, — NY3d —, —, 2025 N.Y. Slip Op 06528, *2 [2025], cert denied — U.S. —, 146 S Ct 2745 [2026] ).  However, defendant's constitutional challenges are unpreserved (see People v. Cabrera, 41 NY3d 35, 42–51 [2023] ), and we decline to review this claim in the interest of justice.