Opinion
1472 KA 17–00045
06-14-2019
The PEOPLE of the State of New York, Respondent, v. David L. CASTANEDA, Defendant–Appellant. (Appeal No. 1.)
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.
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]; see People v. Rush, 94 A.D.3d 1449, 1449, 942 N.Y.S.2d 844 [4th Dept. 2012], lv denied 19 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 denied 16 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 denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] [internal quotation marks omitted]; see People v. King, 151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398 [4th Dept. 2017], lv denied 30 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 (see People v. Torres, 110 A.D.3d 1119, 1119, 972 N.Y.S.2d 738 [3d Dept. 2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ; see also People v. Pacherille, 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; see generally People 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 (see King, 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 ; see King, 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 ; see King, 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 generally King, 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 denied 99 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]; see People v. Diaz, 100 A.D.3d 1491, 1491, 954 N.Y.S.2d 338 [4th Dept. 2012], lv denied 20 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 denied 15 N.Y.3d 707, 909 N.Y.S.2d 21, 935 N.E.2d 813 [2010] ; see People v. Tidd, 128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517 [4th Dept. 2015], lv denied 25 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 assess whether, under the totality of the circumstances, a departure is warranted" ( People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ; see People v. Sincerbeaux, 27 N.Y.3d 683, 689–690, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ).
Here, defendant had two youthful offender adjudications arising from sexual conduct, which were imposed after this incident but were based on conduct that occurred before it. Those events were "not adequately taken into consideration by the risk assessment guidelines and [were] properly considered as justification for the upward departure" ( People v. Roberts, 54 A.D.3d 1106, 1107, 863 N.Y.S.2d 837 [3d Dept. 2008], lv denied 11 N.Y.3d 713, 873 N.Y.S.2d 268, 901 N.E.2d 762 [2008] ; see People v. Perez, 158 A.D.3d 1070, 1071, 70 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 78 N.Y.S.3d 711, 103 N.E.3d 782 [2018] ; People v. Shepard, 103 A.D.3d 1224, 1224–1225, 958 N.Y.S.2d 858 [4th Dept. 2013], lv denied 21 N.Y.3d 856, 968 N.Y.S.2d 1, 990 N.E.2d 135 [2013] ).