People v. King

• Decision Date: 09 June 2017
• Citation: People v. King, 151 A.D.3d 1651, 56 N.Y.S.3d 398 (N.Y. App. Div. 2017)
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael A. KING, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1651

56 N.Y.S.3d 398

The PEOPLE of the State of New York, Respondent,

v.Michael A. KING, Jr., Defendant–Appellant.

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

June 9, 2017.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant.

Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.

MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted sexual abuse in the first degree (Penal Law §§ 110.00,130.65[3] ).Contrary to defendant's contention, his waiver of the right to appeal is valid (see generallyPeople v. Lopez,6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Daigler,148 A.D.3d 1685, 1686, 51 N.Y.S.3d 278 ).Defendant waived that right "both orally and in writing before pleading guilty, and [County Court] conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice"(People v. McGrew,118 A.D.3d 1490, 1490–1491, 987 N.Y.S.2d 539, lv. denied23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145[internal quotation marks omitted];seePeople v. Weatherbee,147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 ).Moreover, the record establishes that defendant"understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (Lopez,6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see

People v. Nicometo,137 A.D.3d 1619, 1619–1620, 26 N.Y.S.3d 916 ).Although the colloquy and the written waiver contain improperly overbroad language regarding the scope of the rights waived by defendant(see generallyPeople v. Callahan,80 N.Y.2d 273, 285, 590 N.Y.S.2d 46, 604 N.E.2d 108;People v. Seaberg,74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ), "[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"(Weatherbee,147 A.D.3d at 1526, 46 N.Y.S.3d 811[internal quotation marks omitted];seePeople v. Henion,110 A.D.3d 1349, 1350, 973 N.Y.S.2d 857, lv. denied22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976;People v. Pelaez,100 A.D.3d 803, 804, 954 N.Y.S.2d 554, lv. denied21 N.Y.3d 945, 968 N.Y.S.2d 8, 990 N.E.2d 142 ).Furthermore, although a waiver of the right to appeal does not foreclose review of a court's failure to consider treatment as a youthful offender, defendant's "valid waiver of the right to appeal ... forecloses appellate review of [the] sentencing court's discretionary decision to deny youthful offender status" to defendant inasmuch as the court considered such status before imposing a sentence (People v. Pacherille,25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 ).

Defendant also challenges the lawfulness of certain conditions of probation that were imposed by the court at sentencing.Defendant's challenges are not precluded by his waiver of the right to appeal inasmuch as they implicate the legality of the sentence, i.e., the court's authority to impose the conditions, and it is well settled that "even a valid waiver of the right to appeal will not bar ... challenge[s] to an illegal sentence"(People v. Fishel,128 A.D.3d 15, 17, 6 N.Y.S.3d 312;seeLopez,6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;Callahan,80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ).Moreover, while the People contend that defendant's challenges are not preserved for our review because defendant failed to object to the probation conditions at sentencing, 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;seePeople v. Nieves,2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13;People v. Samms,95 N.Y.2d 52, 56, 710 N.Y.S.2d 310, 731 N.E.2d 1118 )."The Court of Appeals has recognized that this ‘illegal sentence’ exception encompasses a defendant's claims 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;seePeople v. Letterlough,86 N.Y.2d 259, 263 n. 1, 631 N.Y.S.2d 105, 655 N.E.2d 146;see alsoSamms,95 N.Y.2d at 56, 710 N.Y.S.2d 310, 731 N.E.2d 1118;see generallyPeople v. Fuller,57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563 ).We thus conclude that the narrow exception to the preservation rule applies to defendant's challenges to the probation conditions to the extent that they implicate the legality of his sentence and that any illegality is evident on the face of the record (seeFishel,128 A.D.3d at 18, 6 N.Y.S.3d 312;see alsoSamms,95 N.Y.2d at 56, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ).With respect to the merits, however, we reject defendant's contention that the condition that he sign a consent to waive his Fourth Amendment right protecting him from searches of his person, home, and personal property was unlawfully imposed by the sentencing court.Indeed, that condition was properly "circumscribed to specified types of searches by probation officers acting within the scope of their supervisory duty and in the context of the probationary goal of rehabilitation"(People v. Hale,93 N.Y.2d 454, 460, 692 N.Y.S.2d 649, 714 N.E.2d 861 ).Unlike the defendant in (People v. Mead,133 A.D.3d 1257, 1258, 20 N.Y.S.3d 776 ), the 16–year–old defendant in this case had a history of drug and alcohol abuse beginning at a young age that resulted in, among other things, a referral to a treatment program from which defendant was unsuccessfully discharged.Additionally, the 10–year–old victim of defendant's sexual abuse reported that defendant had exposed her to marihuana.We thus conclude that the consent-to-search condition is tailored to suit defendant and reasonably related to his rehabilitation (seePenal Law § 65.10[2][l];Hale,93 N.Y.2d at 461, 692 N.Y.S.2d 649, 714 N.E.2d 861 ).The condition is also "reasonably necessary to insure that the defendant will lead a law-abiding life"(§ 65.10[1] ), and is necessary to prevent his future incarceration (see§ 65.10[5] ).For the same reasons, defendant's challenge to the probation condition requiring that he abstain from the use or possession of alcoholic beverages is without merit.Contrary to defendant's further contention, the probation condition prohibiting him from using the internet to access any commercial social networking website is one of the mandatory conditions expressly required by statute where, as here, the court imposes a sentence of probation for an offense requiring registration as a sex offender and the victim was under 18 years old at the time of the offense (seePenal Law § 65.10[4–a][b] ).

We reject defendant's challenge to the probation condition prohibiting him from possessing "a cellular phone with photograph/video capabilities."In light of defendant's sexual abuse of a 10–year–old victim, along with the evidence that defendant had exposed the victim to pornographic video and magazine images and the fact that a cellular phone with a camera is readily capable of...