People v. Castaneda

• Decision Date: 14 June 2019
• Docket Number: KA 17–00045,1472
• Citation: People v. Castaneda, 173 A.D.3d 1791, 103 N.Y.S.3d 722 (N.Y. App. Div. 2019)
• Parties: The PEOPLE of the State of New York, Respondent, v. David L. CASTANEDA, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1791

103 N.Y.S.3d 722

The PEOPLE of the State of New York, Respondent,

v.David L. CASTANEDA, Defendant–Appellant. (Appeal No. 1.)

1472

KA 17–00045

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

Entered: June 14, 2019

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by adding to the end of special condition of probation No. 16 the phrase, "except in connection with education, lawful employment or search for lawful employment," and as modified the judgment is affirmed.

Memorandum: These consolidated appeals arise from an incident in which defendant used his cell phone to observe a woman while she was sitting in a bathroom stall.Defendant appeals, in appeal No. 1, from a judgment convicting him upon his plea of guilty of unlawful surveillance in the second degree ( Penal Law § 250.45[2] ).In appeal No. 2, he appeals from an order adjudicating him a level two risk pursuant to the Sex Offender Registration Act( [SORA]Correction Law § 168 et seq. ).

In appeal No. 1, defendant contends that his waiver of the right to appeal is invalid.We reject that contention.County Court"expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea"( People v. Thompson,83 A.D.3d 1535, 1535, 921 N.Y.S.2d 577[4th Dept.2011][internal quotation marks omitted];seePeople v. Rush,94 A.D.3d 1449, 1449, 942 N.Y.S.2d 844[4th Dept.2012], lv denied19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217[2012];People v. Harris,77 A.D.3d 1326, 1326, 907 N.Y.S.2d 893[4th Dept.2010], lv denied16 N.Y.3d 743, 917 N.Y.S.2d 625, 942 N.E.2d 1050[2011] ).Although we agree with defendant that the written waiver of the right to appeal contains improperly overbroad language concerning the rights that he waived, "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable"( People v. Weatherbee,147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811[4th Dept.2017], lv denied29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979[2017][internal quotation marks omitted];seePeople v. King,151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398[4th Dept.2017], lv denied30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524[2017] ).Defendant's valid waiver of the right to appeal forecloses review of his request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender (seePeople v. Torres,110 A.D.3d 1119, 1119, 972 N.Y.S.2d 738[3d Dept.2013], lv denied22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389[2013];see alsoPeople v. Pacherille,25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393[2015];see generallyPeople v. Lopez,6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145[2006] ).

Defendant further contends in appeal No. 1 that the court imposed several unlawful conditions of probation.Initially, we note that defendant's contentions are not encompassed by the valid waiver of the right to appeal because they are based on challenges to the legality of the sentence (seeKing,151 A.D.3d at 1652, 56 N.Y.S.3d 398;People v. Fishel,128 A.D.3d 15, 17, 6 N.Y.S.3d 312[3d Dept.2015] ).Additionally, although defendant failed to preserve those contentions for our review, there is a "narrow exception to [the] preservation rule permitting appellate review when a sentence's illegality is readily discernible from the trial record"( People v. Santiago,22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507[2013] ), and that exception encompasses a contention that a "probation condition is unlawful because it is not reasonably related to rehabilitation or is outside the authority of the court to impose"( Fishel,128 A.D.3d at 17–18, 6 N.Y.S.3d 312;seeKing,151 A.D.3d at 1652, 56 N.Y.S.3d 398 ).We conclude that, inasmuch as defendant's challenges to the conditions of probation here "implicate the legality of defendant's sentence and any illegality is evident on the face of the record, those claims are not barred by ... defendant's failure to preserve them"( Fishel,128 A.D.3d at 17–18, 6 N.Y.S.3d 312;seeKing,151 A.D.3d at 1652, 56 N.Y.S.3d 398 ).

With respect to the merits, the People correctly concede that the court erred in barring defendant from all use of the internet.The statute provides that a sentencing "court may require that the defendant comply with a reasonable limitation on his or her use of the internet ... provided that the court shall not prohibit such sentenced offender from using the internet in connection with education, lawful employment or search for lawful employment"( Penal Law § 65.10[5–a] ).We therefore modify the judgment by adding to the end of special condition of probation No. 16 the phrase, "except in connection with education, lawful employment or search for lawful employment."We have considered defendant's remaining challenges to the conditions of probation, and we conclude that none warrants further modification or reversal of the judgment (see generallyKing,151 A.D.3d at 1653–1654, 56 N.Y.S.3d 398;People v. Wahl,302 A.D.2d 976, 976, 755 N.Y.S.2d 537[4th Dept.2003], lv denied99 N.Y.2d 659, 760 N.Y.S.2d 124, 790 N.E.2d 298[2003] ).

In appeal No. 2, we reject defendant's contention that the court abused its discretion in granting an upward departure from his presumptive level one risk, which was based on his score on the risk assessment instrument, and classifying him as a level two risk.It is well settled that a SORA "court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] ... [the court determines that] there exists an aggravating ... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines"( People v. Abraham,39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413[4th Dept.2007][internal quotation marks omitted];seePeople v. Diaz,100 A.D.3d 1491, 1491, 954 N.Y.S.2d 338[4th Dept.2012], lv denied20 N.Y.3d 858, 960 N.Y.S.2d 350, 984 N.E.2d 325[2013] ).The "court's discretionary upward departure [must be] based on clear and convincing evidence of aggravating factors"( People v. Sherard,73 A.D.3d 537, 537, 903 N.Y.S.2d 3[1st Dept.2010], lv denied15 N.Y.3d 707, 909 N.Y.S.2d 21, 935 N.E.2d 813[2010];seePeople v. Tidd,128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517[4th Dept.2015], lv denied25 N.Y.3d 913, 16 N.Y.S.3d 517, 37 N.E.3d 1160[2015] ) and, "[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to...