Crimes - Sentence - Probation - Conditions

Judgment, Supreme Court, Bronx County (Matthew Grieco, J., at search warrant application; Ralph A. Fabrizio, J., on motion to controvert the search warrant and at plea and sentencing), rendered July 26, 2024, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a five-year term of probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring him to pay $375 in surcharge and fees as a condition of probation, and otherwise affirmed.

Defendant validly waived his right to appeal (see People v Thomas, 34 NY3d 545 [2019], cert denied 589 US 1302 [2020]), which forecloses review of his suppression and excessive sentence claims (see People v Bawa, 234 AD3d 601 [1st Dept 2025], lv denied 43 NY3d 943 [2025]). As alternative holdings, our in camera review of the warrant and underlying materials demonstrates that the warrant was supported by probable cause (see People v Griminger, 71 NY2d 635, 639 [1988]; see also Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]), adequately described the premises and property to be seized, and was not premised on stale information.

We perceive no basis for reducing defendant's sentence.

Defendant's challenges to specific conditions of his probation as not reasonably related to his rehabilitation under Penal Law § 60.35 (1) survive his voluntary waiver of the right to appeal, and does not require preservation, because "th[e] issue implicates the legality of the sentence imposed" (People v Alvarez, 233 AD3d 619 [1st Dept 2024], lv denied 43 NY3d 961 [2025]). However, the court providently imposed condition 7, which tracked the language of Penal Law § 65.10 (2) (a), (b), and required that defendant "[a]void injurious or vicious habits; refrain from frequenting unlawful or disreputable places; and . . . not consort with disreputable people," given that when the police searched defendant's apartment, they recovered a loaded gun, 18 rounds of ammunition, more than half an ounce of crack cocaine, a holster, and a ballistic vest.

Defendant's facial challenge to Penal Law § 65.10 (2) (a), (b) survives a valid waiver (see People v Johnson, — NY3d —, —, 2025 NY Slip Op 06528, *2 [2025]), however, defendant's claim is unpreserved (see — NY3d at —, 2025 NY Slip Op 06528, *3) and we decline to reach it in the interest of justice. In any event, we reject it on the merits.

Defendant was injured and consequently is unable to find employment. The imposition of the mandatory surcharge, crime victim's and DNA fees, as a condition of defendant's probation will not assist in ensuring he leads a law-abiding life and is not reasonably related to his rehabilitation (see People v Percy, 234 AD3d 619, 620 [1st Dept 2025]). We note the People do not oppose this relief. Concur—Manzanet-Daniels, J.P., Scarpulla, Friedman, Chan, Hagler, JJ.