People v. Romanelli

• Decision Date: 12 November 2020
• Docket Number: 110784
• Citation: People v. Romanelli, 188 A.D.3d 1354, 134 N.Y.S.3d 118 (N.Y. App. Div. 2020)
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew J. ROMANELLI, Appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1354

134 N.Y.S.3d 118

The PEOPLE of the State of New York, Respondent,

v.Matthew J. ROMANELLI, Appellant.

110784

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

Calendar Date: October 22, 2020

Decided and Entered: November 12, 2020

Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.

Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.

Before: Garry, P.J., Clark, Devine, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered November 8, 2018, convicting defendant upon his plea of guilty of the crime of endangering the welfare of a child.

Defendant was indicted and charged with one count of rape in the third degree and two counts of endangering the welfare of a child.The charges stemmed from allegations that defendant had engaged in a sexual relationship with a child less than 17 years old and had provided alcohol to a minor.In full satisfaction of that indictment, defendant pleaded guilty to one count of endangering the welfare of a child (providing alcohol to a minor) with the understanding that he would be sentenced to three years of probation.The plea agreement also required defendant to waive his right to appeal.In conjunction with the plea, County Court also dismissed an additional sex-related charge that had been lodged against defendant.

When the parties appeared for sentencing, defendant objected to certain of the terms and conditions governing his probation – namely, those conditions applicable to convicted sex offenders (seePenal Law § 65.10[4–a] ).As he had not been convicted of a sex offense, defendant argued, his access to the Internet and social networking sites, among other things, should not be so constrained.County Court left the contested provisions in place, concluding that such conditions were warranted "[g]iven the totality of the circumstances."Defendant appeals, contending that the imposition of such terms and conditions rendered his sentence illegal.

As the People acknowledge, "even a valid waiver of the right to appeal will not bar a challenge to an illegal sentence," and such challenge "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"( People v. Fishel,128 A.D.3d 15, 17–18, 6 N.Y.S.3d 312[2015];accordPeople v. King,151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398[2017], lv denied30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524[2017] ).To the extent required, defendant preserved this issue for our review by objecting to the imposition of the challenged terms and conditions at sentencing (comparePeople v. Williams,300 A.D.2d 825, 827, 752 N.Y.S.2d 434[2002] ).

Pursuant to Penal Law § 65.10(1), "[t]he conditions of probation ... shall be such as the [sentencing]court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so"(seePeople v. Donaldson,110 A.D.3d 1120, 1121, 972 N.Y.S.2d 114[2013] ).The sentencing court is afforded considerable latitude in this regard and may require a probationer to satisfy – in addition to the terms and conditions enumerated in the statute – "any other conditions reasonably related to his [or her] rehabilitation"( Penal Law § 65.10[2][l];seePeople v. Hale,93 N.Y.2d 454, 461, 692 N.Y.S.2d 649, 714 N.E.2d 861[1999] ).To that end, Penal Law § 65.10(5) expressly provides that, "[w]hen imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivisions two, three and four of this section, require that the defendant comply with any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant"(seePeople v. Donaldson,110 A.D.3d at 1121, 972 N.Y.S.2d 114 ).

In addition to the general conditions to which all probationers are subject (seePenal Law § 65.10[2], [3] ), the statute imposes certain mandatory conditions for convicted sex offenders, including limiting a defendant's access to the Internet and social networking sites, precluding a defendant from frequenting locations where children are likely to congregate and requiring a defendant to undergo a sex offender evaluation and to comply with any treatment recommendations (seePenal Law § 65.10[4–a] ).According to defendant, given that he was not in fact convicted of a sex crime, County Court abused its discretion in subjecting him to certain of the statutory conditions applicable to sex offenders.We disagree.

As a starting point, nothing on the face of the statute limits application of the terms and conditions set forth in Penal Law § 65.10(4–a) to those probationers who qualify as sex offenders.Indeed, "it has been held proper to impose ‘sex offender’ conditions in cases which do not technically qualify as ‘sex offender’cases, such as those involving endangering the welfare of a child, so long as the conditions imposed are ‘reasonably related to the defendant's rehabilitation’( Penal Law § 65.10[2][l] ), are ‘reasonably necessary to insure that the defendant will lead a law-abiding life’( Penal Law § 65.10[1] ), and are ‘necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant’( Penal Law § 65.10[5] )"( People v. Velardi,10 Misc.3d 47, 49, 809 N.Y.S.2d 774[Sup. Ct., App. Term, 2d Dept.2005][citation and brackets omitted];accordPeople v. Lawson,55 Misc.3d 147[A], 2017 N.Y. Slip Op. 50701[U], 2017 WL 2380807, *2[Sup. Ct., App. Term 9th & 10th Jud. Dists. 2017], lv denied29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571[2017];seePeople v. Bania,9 Misc.3d 135[A], 2005 N.Y. Slip Op. 51682[U], 2005 WL 2682200, *2[Sup. Ct., App. Term 9th & 10th Jud. Dists. 2005] ).

To be sure, the count of endangering the welfare of a child to which defendant pleaded guilty was not premised upon sexually-based conduct (comparePeople v. Brown,62 A.D.3d 1209, 1210, 879 N.Y.S.2d 627[2009];People v. Pierre,46 Misc.3d 1215[A], ...