People v. Acuna

• Decision Date: 16 June 2021
• Docket Number: 2019-08302,Ind. No. 8668/18
• Parties: The PEOPLE, etc., respondent, v. Edgar ACUNA, appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 854

145 N.Y.S.3d 831 (Mem)

The PEOPLE, etc., respondent,

v.Edgar ACUNA, appellant.

2019-08302

Ind. No. 8668/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 17, 2021

June 16, 2021

Paul Skip Laisure, New York, N.Y. (David L. Goodwin of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shalom J. Twersky, and Michael Bierce of counsel), for respondent.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J.), rendered July 10, 2019, convicting him of burglary in the third degree and criminal contempt in the second degree, upon his plea of guilty, and imposing concurrent terms of probation, including Condition No. 28, requiring the defendant to consent to a search by a probation officer 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.

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.

In exchange for his plea of guilty to burglary in the third degree and criminal contempt in the second degree, the defendant was sentenced to four years' probation and three years' probation, respectively, to run concurrently. There is no indication in the record that the conditions of probation were discussed at any time prior to the imposition of sentence. One of the conditions of probation (Condition No. 28) required the defendant to consent to a search by a probation officer 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. 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 ).

The defendant correctly argues that he was not required to preserve this issue for appellate review (see People v. Hakes, 32 N.Y.3d 624, 628...