Opinion
06-11-2024
The PEOPLE of the State of New York, Respondent, v. Kevin HALL, Defendant–Appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Noah J. Sexton of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Sexton of counsel), for respondent.
Kern, J.P., Kapnick, Gesmer, González, O’Neill Levy, JJ.
Judgment, Supreme Court, Bronx County (Guy H. Mitchell, J.), rendered February 28, 2023, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him to five years’ probation, unanimously modified, on the law, to the extent of stinking the condition of probation requiring that defendant consent to warrantless searches of his person and home, and otherwise affirmed.
Defendant made a valid waiver of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his excessive sentence claim. In any event, we perceive no basis for reducing the sentence.
Defendant’s challenge to the condition of probation requiring that he consent to warrantless searches of his person and home survives the appeal waiver (see People v. Arias, 210 A.D.3d 593, 594, 179 N.Y.S.3d 47 [1st Dept. 2022], lv denied 39 N.Y.3d 1109, 186 N.Y.S.3d 844, 208 N.E.3d 72 [2023]). The Department of Probation had recommended, as a probation condition, that "a warrantless search of this defendant and his home be provided for the safety of the officers making home visits and the community." The People concede that this condition should be stricken. Moreover, the condition was not reasonably related to defendant's rehabilitation, given that defendant was not armed with a weapon during the underlying offense, and had no history of violence or use of weapons (see CPL 65.10[1], [2][1]; People v. Letterlough, 86 N.Y.2d 259, 263–265, 631 N.Y.S.2d 105, 655 N.E.2d 146 [1995]; Arias, 210 A.D.3d at 594, 179 N.Y.S.3d 47).