Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered June 1, 2010.
Decided on October 5, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted, upon his plea of guilty, of sexual abuse in the first degree (Penal Law § 130.65 ), for having subjected a five-year-old girl to sexual contact by rubbing her buttocks for his own sexual gratification. Defendant was sentenced to a split sentence of incarceration and probation and was subsequently adjudicated a level three sex offender (see People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). Pursuant to condition No. 5 of his probation, defendant is required to obtain "suitable employment" or "pursue a course of study or vocational training." Pursuant to condition No. 16 of his probation, which was imposed based on his status as a sex offender, defendant is not permitted to "own, possess or have under [his] control items deemed by the probation officer or treatment provider to be pornographic or sexually stimulating."
During defendant's period of probation, defendant's probation officer and other members of the probation department conducted a search of defendant's home. During the search, the probation officers discovered a laptop computer with 113 images of prepubescent girls in various explicit poses and stages of undress stored therein (images). Defendant's probation officer filed an information for delinquency alleging that defendant violated condition No. 16 of his probation based on defendant's possession of the images on his computer. The officer also alleged that defendant violated condition No. 5 of his probation based on his failure to be suitably employed or enrolled in school. Following a hearing, Supreme Court determined that defendant violated his probation, revoked his probation and sentenced him to a determinate term of incarceration. Defendant appeals. All of the contentions addressed herein are contained in defendant's main brief unless otherwise noted.
"A violation of probation proceeding is summary in nature and a sentence of probation may be revoked if the defendant has been afforded an opportunity to be heard" (People v Perna, 74 AD3d 1807, 1807, lv denied 17 NY3d 716 [internal quotation marks omitted]; see People v DeMarco, 60 AD3d 1107, 1108). The People are required to establish by a preponderance of the evidence that defendant violated the terms and conditions of his probation (see CPL 410.70 ; People v Pringle, 72 AD3d 1629, 1629, lv denied 15 NY3d 855; People v Bergman, 56 AD3d 1225, 1225, lv denied 12 NY3d 756), and "the decision to revoke his probation will not be disturbed, [absent a] clear abuse of discretion' " (People v Barber, 280 AD2d 691, 694, lv denied 96 NY2d 825; see Bergman, 56 AD3d at 1225).
Defendant contends in his main and pro se supplemental briefs that the People failed to establish by a preponderance of the evidence that he violated condition No. 5 (see People v Garner, 56 AD3d 951, 952, lv denied 12 NY3d 783; People v Green, 255 AD2d 923, 923, lv denied 93 NY2d 853; see generally Bergman, 56 AD3d at 1225). That contention lacks merit. We defer to the court's determination crediting the testimony of defendant's probation officer, who testified that defendant failed to obtain "suitable employment" or "pursue a course of study or vocational training" despite his ability to do so (see Perna, 74 AD3d at 1807; DeMarco, 60 AD3d at 1108).
Defendant further contends in his main and pro se supplemental briefs that the court erred in refusing to suppress the evidence recovered by the probation officers when they searched his home and computer. We reject that contention. While on probation, a defendant still retains the constitutional right to be free from "unreasonable searches and seizures" (People v Huntley, 43 NY2d 175, 181; see People v Hale, 93 NY2d 454, 459). Nevertheless, pursuant to a condition of his probation, defendant consented to warrantless searches by probation officers of, inter alia, his home in order for those officers to monitor his compliance with the conditions of his probation, and defendant further consented to "seizures of any items found to be in violation" of those conditions (see Hale, 93 NY2d at 460). Condition No. 16 of his probation, which as noted prohibits defendant from owning, possessing or having under his control "pornographic" or "sexually stimulating" items, was "individually tailored" to defendant's underlying sex offense and "reasonably related" to his rehabilitation and supervision (id. at 462; see People v Wahl, 302 AD2d 976, 976, lv denied 99 NY2d 659; People v Schunk, 269 AD2d 857, 857). "As such, [those conditions] provided an appropriate basis for the search and seizure of [defendant's home and computer]" (Hale, 93 NY2d at 462). Further, the record establishes that defendant violated the terms of his probation on two prior occasions by failing to participate in a sex offender treatment program, and we thus conclude that the decision of defendant's probation officer to search his home and computer was " rationally and reasonably related to the performance of the [probation] officer's duty' " to monitor the terms of defendant's probation (People v Johnson, 49 AD3d 1244, 1245, lv denied 10 NY3d 865, quoting Huntley, 43 NY2d at 181; see Hale, 93 NY2d at 462).
Defendant also contends that the term "sexually stimulating" as used in condition No. 16 is unconstitutionally vague and unenforceable. Preliminarily, we note that defendant does not challenge the term "pornographic" as used in that condition as being unconstitutionally vague and unenforceable. Consequently, even assuming, arguendo, that the term "sexually stimulating" is unconstitutionally vague, we conclude that reversal is not required because, as discussed infra, the court properly determined that the images were pornographic in nature and thus condition No. 16 is enforceable (see People v Tucker, 302 AD2d 752, 753). In any event, we conclude that the term "sexually stimulating" as used in condition No. 16 "is sufficiently explicit to inform a reasonable person of the conduct to be avoided" and therefore is not unconstitutionally vague (id.; see People v York, 2 AD3d 1158, 1160; People v Howland, 108 AD2d 1019, 1020; see generally People v Stuart, 100 NY2d 412, 420-421). Given the nature of defendant's underlying sex offense and his status as a level three sex offender, we conclude that defendant could not have reasonably believed ...