People v. Berkley

• Decision Date: 06 July 1989
• Citation: 543 N.Y.S.2d 568,152 A.D.2d 788
• Parties: The PEOPLE of the State of New York, Respondent, v. Jerald O. BERKLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 568

543 N.Y.S.2d 568

152 A.D.2d 788

The PEOPLE of the State of New York, Respondent, v. Jerald O. BERKLEY, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 6, 1989.

E. Stewart Jones, Jr., Troy, for appellant.

Sol Greenberg, Atty. Gen. (John E. Maney, of counsel), Albany, for respondent.

Before WEISS, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered February 19, 1988, which revoked defendant's probation and imposed a sentence of imprisonment.

In October 1983, defendant was convicted of a felony for driving while intoxicated (hereinafter DWI) and was sentenced to 60 days in jail and five years' probation. The original conditions of defendant's probation provided that defendant was not to operate a motor vehicle during his probationary period. In 1986, as a condition for lifting the prohibition of operating a motor vehicle to and from work, the following provision was added to the terms of his probation:

4. Refrain from the use of alcohol and submit to Alco-Sensor [breathalyzer] Analysis as deemed appropriate by the Probation Department.

Subsequently, on September 10, 1987, defendant was again arrested for DWI. On November 24, 1987, he was accused of intoxication by his probation officer. Violation hearings were conducted for both incidents and he was found guilty by County Court of both violations. Thereafter, defendant's probation was revoked and he was sentenced to a prison term of 1 1/3 to 4 years. ^* This appeal followed.

Initially, we reject defendant's argument that condition 4 of his modified probation order is overbroad, unduly harsh and beyond the authority of Penal Law § 65.10. Despite defendant's contentions otherwise, the requirement that he refrain from the consumption of alcohol was entirely appropriate given the nature of his conviction and the circumstances surrounding his present probation violations (see, People v. Nazarian, App.Div., 541 N.Y.S.2d 262). Defendant's legal history contains five DWI arrests resulting in one felony conviction. It seems clear that his consumption of alcohol, in combination with his operation of a motor vehicle, is the sole precipitating factor of his contact with the criminal justice system. Under these circumstances, requiring him to refrain from its consumption is reasonably related to his rehabilitation (see, Penal Law § 65.10[1], [2] and is in keeping with the practice in several other states (see generally, Annotation, Propriety of Requirement, as Condition of Probation, that Defendant Refrain from use of Intoxicants, 19 A.L.R. 4th 1251).

Defendant's broad contention that the fact that he is an alcoholic should exempt him from such a condition lacks merit (cf., Mock v. State, 156 Ga.App. 763, 275 S.E.2d 393), especially since there is no evidence that defendant is a chronic alcoholic who is pathologically unable to refrain from drinking (see, e.g., State ex rel. Mulligan v. Department of Health & Social Servs., 86 Wis.2d 517, 273 N.W.2d 290; State v. Oyler, 92 Idaho 43, 436 P.2d 709; see also, Sweeney v. United States, 353 F.2d 10). To the contrary, although defendant now admits that he is an alcoholic, at the hearings he denied that he consumed alcohol on the occasions in question but he continues to blame his present difficulties on faulty testing equipment. He also argues that any symptoms of alcohol ingestion were brought about by his consumption of nonprescription drugs which contained alcohol of which he was unaware.

We also reject defendant's assertion that requiring him to submit to an Alco-sensor test without first obtaining a search order (see, CPL 410.50[3] constituted an illegal search and seizure in violation of his constitutional rights. The general rule is that a probation officer should not search a probationer or his personal property without a search order absent waiver, exigent circumstances or as search incident to arrest ( People v. Brown, 114 A.D.2d 1035, 495 N.Y.S.2d 474, lv. denied 67 N.Y.2d 759, 500 N.Y.S.2d 1031, 491 N.E.2d 288; see, People v. Jackson, 46 N.Y.2d 171, 176, 412 N.Y.S.2d 884, 385 N.E.2d 621). Nonetheless, "a probationer may consent as a condition of probation, to permit...