Crimes - Sentence - Probation - Conditions

Crimes - Appeal - Valid Waiver - Foreclosure of Review of Constitutional Challenges

Judgment, Supreme Court, New York County (Althea Drysdale, J.), rendered August 20, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree and aggravated unlicensed operation of a motor vehicle in the second degree, and sentencing him to concurrent terms of two years of probation and a $1,000 fine, unanimously modified, on the law, to the extent of striking the condition of probation prohibiting defendant from wearing or displaying gang paraphernalia or having any association with a gang or members of a gang if directed by the Department of Probation, and otherwise affirmed.

Defendant validly waived his right to appeal (see People v Thomas, 34 NY3d 545, 559 [2019], cert denied 589 US 1302 [2020]), which forecloses review of his excessive sentence claim (see People v Nunez, 220 AD3d 597, 597 [1st Dept 2023], lv denied 41 NY3d 1004 [2024]). In any event, defendant seeks a reduction in fines and court fees, to which defendant would be entitled if he can establish that he is unable to pay the fine because of indigency (see CPL 420.10 [5]; People v Toledo, 101 AD3d 571, 571 [1st Dept 2012], lv denied 21 NY3d 947 [2013]).

Defendant's challenge to specific conditions of his probation as not reasonably related to his rehabilitation under Penal Law § 65.10 (1) survives his valid waiver of his right to appeal and does not require preservation (see People v Alvarez, 233 AD3d 619, 620 [1st Dept 2024], lv denied 43 NY3d 961 [2025]; People v Arias, 210 AD3d 593, 594 [1st Dept 2022], lv denied 39 NY3d 1109 [2023]; see also People v Hakes, 32 NY3d 624, 628 n 3 [2018]). The condition requiring that he "[a]void injurious or vicious habits; refrain from frequenting unlawful or disreputable places; and . . . not consort with disreputable people" (Penal Law § 65.10 [2] [a], [b]) was providently imposed as reasonably necessary to ensure that defendant "will lead a law-abiding life or to assist him to do so," given his possession of forged motor vehicle records here and his lengthy criminal history, which included drug-related and weapon-possession convictions (Penal Law § 65.10 [1]; see People v Pointdexter, 243 AD3d 421, 422 [1st Dept 2025]).

However, the probation condition requiring defendant to "[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation" should be stricken as not reasonably related to his rehabilitation or necessary to ensure that he leads a law-abiding life (see Penal Law § 65.10 [1]) since there is no evidence that defendant's actions were connected to gang activity or that he had a history of gang membership (see People v Vasquetelles, 241 AD3d 1208, 1209 [1st Dept 2025], lv denied 44 NY3d 1054 [2025]).

Defendant's valid waiver of his right to appeal forecloses review of his as-applied constitutional challenges to the probation conditions under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments (see People v Johnson, — NY3d —, —, 2025 NY Slip Op 06528, *2 [2025]; People v Lowndes, 239 AD3d 574, 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025]). In any event, these claims are unpreserved (see People v Cabrera, 41 NY3d 35, 42-51 [2023]), and we decline to review them in the interest of justice. Were we to do so, we would find them unavailing. Concur—Webber, J.P., Kapnick, Gesmer, Shulman, Michael, JJ.