Opinion
110784
11-12-2020
The PEOPLE of the State of New York, Respondent, v. Matthew J. ROMANELLI, Appellant.
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.
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 (see Penal 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] ; accord People v. King, 151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398 [2017], lv denied 30 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 (compare People 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" (see People 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] ; see People 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" (see People 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 (see Penal 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 (see Penal 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]; accord People 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 denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ; see People 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 (compare People v. Brown, 62 A.D.3d 1209, 1210, 879 N.Y.S.2d 627 [2009] ; People v. Pierre, 46 Misc.3d 1215[A], 2015 N.Y. Slip Op. 50094[U], 2015 WL 463980, *3 [Sup. Ct., Kings County 2015] ). That said, defendant acknowledged that the victim – the daughter of a former girlfriend – frequently spent the night at his residence and sometimes slept in his bed, that he had seen the victim naked and that, during one overnight visit, neighbors contacted Child Protective Services because "moaning and sexual noises" could be heard emanating from defendant's apartment. Although defendant denied any sexual contact with the victim, insisted that he would "move to the couch or the floor" if the victim fell asleep in his bed while watching television with him and claimed that the noises heard by his neighbors were the result of a television show, we are satisfied – upon due consideration of all of the attendant circumstances – that the additional conditions imposed upon defendant's probation by County Court were reasonably related to defendant's rehabilitation (see Penal Law § 65.10[2][l] ) and were reasonably necessary to ensure that he would lead a law-abiding life (see Penal Law § 65.10[1] ) and to prevent his future incarceration (see Penal Law § 65.10[5] ; People v. Wahl, 302 A.D.2d 976, 976, 755 N.Y.S.2d 537 [2003], lv denied 99 N.Y.2d 659, 760 N.Y.S.2d 124, 790 N.E.2d 298 [2003] ). As we discern no abuse of County Court's considerable discretion in this regard, the judgment of conviction is affirmed.
The particular vulnerabilities of the victim are reflected in her statement to law enforcement, wherein she indicated that she takes "multiple prescription medications" for various mental health issues, including severe anxiety. The victim also stated that defendant purchased expensive gifts for her, such as a laptop computer, and paid for her cellular phone, the latter of which defendant "use[d] ... to control [her]."
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Garry, P.J., Clark, Devine and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.