PEOPLE v. MENSAH (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (E. Niki Warin, J.), rendered August 25, 2022, convicting him of assault in the second degree, upon his plea of guilty, and sentencing him to a definite term of incarceration of one day, to be followed by a term of probation, which included as a condition Condition No. 28, requiring the defendant to consent to a search by a probation officer or a probation officer and his or her agent 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 during the search.  The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that the judgment is modified, on the law, by deleting Condition No. 28 from the conditions of probation;  as so modified, the judgment is affirmed.

The defendant was sentenced to a definite term of incarceration of one day, to be followed by a three-year term of probation, following his plea of guilty to assault in the second degree.  The defendant's conviction stemmed from an October 8, 2021 incident, where he threw boiling water in his wife's face, causing her to sustain redness and welting on her face.  The defendant had no prior criminal history and had voluntarily enrolled in counseling services following the incident.  At sentencing, the Supreme Court, as a condition of probation (Condition No. 28), required the defendant to consent to a search by a probation officer or a probation officer and his or her agent of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, weapons, or contraband found during the search.  On appeal, the defendant argues that this condition of his probation was improperly imposed.

Pursuant to Penal Law § 65.10(1), the conditions of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so.”  The statute “quite clearly restricts probation conditions to those reasonably related to a defendant's rehabilitation” (People v. Letterlough, 86 N.Y.2d 259, 265, 631 N.Y.S.2d 105, 655 N.E.2d 146).

Here, the defendant was a first-time offender and was not armed with a weapon at the time he committed the offense.  Additionally, the defendant has not been assessed as being in need of alcohol or substance abuse treatment.  Under the circumstances, the consent to search condition of probation was improperly imposed because it was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant's rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life (see People v. Hale, 93 N.Y.2d 454, 461, 692 N.Y.S.2d 649, 714 N.E.2d 861;  People v. Dranchuk, 203 A.D.3d 741, 160 N.Y.S.3d 653;  People v. Acuna, 195 A.D.3d 854, 855, 145 N.Y.S.3d 831;  People v. Mead, 133 A.D.3d 1257, 1258, 20 N.Y.S.3d 776).

The defendant's contentions regarding the final order of protection issued at the time of sentencing are unpreserved for appellate review (see CPL 470.05[2];  People v. Nieves, 2 N.Y.3d 310, 316–318, 778 N.Y.S.2d 751, 811 N.E.2d 13;  People v. DeRobertis, 191 A.D.3d 898, 138 N.Y.S.3d 919).  Under the circumstances, we decline to review these contentions in the exercise of our interest of justice jurisdiction (see People v. DeRobertis, 191 A.D.3d 898, 138 N.Y.S.3d 919;  People v. Rodriguez, 191 A.D.3d 807, 808, 138 N.Y.S.3d 360;  People v. Hampton, 186 A.D.3d 855, 127 N.Y.S.3d 327).  “ ‘[T]he better practice—and best use of judicial resources—is for a defendant seeking adjustment of [an order of protection] to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary’ ” (People v. Holmes, 206 A.D.3d 761, 762, 167 N.Y.S.3d 828, quoting People v. Nieves, 2 N.Y.3d at 317, 778 N.Y.S.2d 751, 811 N.E.2d 13;  see People v. DeRobertis, 191 A.D.3d 898, 138 N.Y.S.3d 919;  People v. Rodriguez, 191 A.D.3d at 808, 138 N.Y.S.3d 360;  People v. Hampton, 186 A.D.3d 855, 127 N.Y.S.3d 327).

LASALLE, P.J., MILLER, GENOVESI and LOVE, JJ., concur.