LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P.
DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A.
GORMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER,
from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered March 27, 2015. The judgment convicted
defendant, upon his plea of guilty, of attempted sexual abuse
in the first degree.
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him upon his
plea of guilty of attempted sexual abuse in the first degree
(Penal Law §§ 110.00, 130.65 ). Contrary to
defendant's contention, his waiver of the right to appeal
is valid (see generally People v Lopez, 6 N.Y.3d
248, 256; People v Daigler, 148 A.D.3d 1685, 1686).
Defendant waived that right "both orally and in writing
before pleading guilty, and [County Court] conducted an
adequate colloquy to ensure that the waiver of the right to
appeal was a knowing and voluntary choice" (People v
McGrew, 118 A.D.3d 1490, 1490-1491, lv denied
23 N.Y.3d 1065');">23 N.Y.3d 1065 [internal quotation marks omitted]; see
People v Weatherbee, 147 A.D.3d 1526, 1526). Moreover,
the record establishes that defendant "understood that
the right to appeal is separate and distinct from those
rights automatically forfeited upon a plea of guilty"
(Lopez, 6 N.Y.3d at 256; see People v
Nicometo, 137 A.D.3d 1619, 1619-1620). Although the
colloquy and the written waiver contain improperly overbroad
language regarding the scope of the rights waived by
defendant (see generally People v Callahan, 80
N.Y.2d 273, 285; People v Seaberg, 74 N.Y.2d 1, 9),
"[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"
(Weatherbee, 147 A.D.3d at 1526 [internal quotation
marks omitted]; see People v Henion, 110 A.D.3d
1349, 1350, lv denied 22 N.Y.3d 1088; People v
Pelaez, 100 A.D.3d 803, 804, lv denied 21
N.Y.3d 945). Furthermore, although a waiver of the right to
appeal does not foreclose review of a court's failure to
consider treatment as a youthful offender, defendant's
"valid waiver of the right to appeal... forecloses
appellate review of [the] sentencing court's
discretionary decision to deny youthful offender status"
to defendant inasmuch as the court considered such status
before imposing a sentence (People v Pacherille, 25
N.Y.3d 1021, 1024).
also challenges the lawfulness of certain conditions of
probation that were imposed by the court at sentencing.
Defendant's challenges are not precluded by his waiver of
the right to appeal inasmuch as they implicate the legality
of the sentence, i.e., the court's authority to impose
the conditions, and it is well settled that "even a
valid waiver of the right to appeal will not bar...
challenge[s] to an illegal sentence" (People v
Fishel, 128 A.D.3d 15, 17; see Lopez, 6 N.Y.3d
at 255; Callahan, 80 N.Y.2d at 280). Moreover, while
the People contend that defendant's challenges are not
preserved for our review because defendant failed to object
to the probation conditions at sentencing, 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; see People v
Nieves, 2 N.Y.3d 310, 315; People v Samms, 95
N.Y.2d 52, 56). "The Court of Appeals has recognized
that this illegal sentence' exception 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"
(Fishel, 128 A.D.3d at 17-18; see People v
Letterlough, 86 N.Y.2d 259, 263 n 1; see also
Samms, 95 N.Y.2d at 56; see generally People v
Fuller, 57 N.Y.2d 152, 156). We thus conclude that the
narrow exception to the preservation rule applies to
defendant's challenges to the probation conditions to the
extent that they implicate the legality of his sentence and
that any illegality is evident on the face of the record
(see Fishel, 128 A.D.3d at 18; see also
Samms, 95 N.Y.2d at 56).
respect to the merits, however, we reject defendant's
contention that the condition that he sign a consent to waive
his Fourth Amendment right protecting him from searches of
his person, home, and personal property was unlawfully
imposed by the sentencing court. Indeed, that condition was
properly "circumscribed to specified types of searches
by probation officers acting within the scope of their
supervisory duty and in the context of the probationary goal
of rehabilitation" (People v Hale, 93 N.Y.2d
454, 460). Unlike the defendant in People v Mead
(133 A.D.3d 1257, 1258), the 16-year-old defendant in this
case had a history of drug and alcohol abuse beginning at a
young age that resulted in, among other things, a referral to
a treatment program from which defendant was unsuccessfully
discharged. Additionally, the 10-year-old victim of
defendant's sexual abuse reported that defendant had
exposed her to marihuana. We thus conclude that the
consent-to-search condition is tailored to suit defendant and
reasonably related to his rehabilitation (see Penal
Law § 65.10  [l]; Hale, 93 N.Y.2d at 461).
The condition is also "reasonably necessary to insure
that the defendant will lead a law-abiding life" (§
65.10 ), and is necessary to prevent his future
incarceration (see § 65.10 ). For the same
reasons, defendant's challenge to the probation condition
requiring that he abstain from the use or possession of
alcoholic beverages is without merit.
to defendant's further contention, the probation
condition prohibiting him from using the internet to access
any commercial social networking website is one of the
mandatory conditions expressly required by statute where, as
here, the court imposes a sentence of probation for an
offense requiring registration as a sex offender and the
victim was under 18 years old at the time of the offense
(see Penal Law § 65.10 [4-a] [b]).
reject defendant's challenge to the probation condition
prohibiting him from possessing "a cellular phone with
photograph/video capabilities." In light of
defendant's sexual abuse of a 10-year-old victim, along
with the evidence that defendant had exposed the victim to
pornographic video and magazine images and the fact that a
cellular phone with a camera is readily capable of being used
to create such images of oneself or others and distribute
them to other persons, we conclude that the subject
prohibition relates to defendant's rehabilitation, would
assist in preventing his incarceration, and is, in general,
reasonably necessary to assist defendant in leading a
law-abiding life (see Penal Law § 65.10 ,
 [l]; ).
to defendant's further contention, inasmuch as there is
evidence in the record that he showed the victim pornographic
images, the probation conditions prohibiting his possession
of pornographic or sexually stimulating materials were
properly " tailored in relation to the offense, and
were reasonably related to defendant's
rehabilitation' " (People v Franco, 69
A.D.3d 981, 983, quoting Hale, 93 N.Y.2d at 462;
see generally People v Wheeler, 99 A.D.3d 1168,
1170, lv denied 20 N.Y.3d 989).
contention that the pornography-related probation conditions
are unconstitutional is not preserved for our review inasmuch
as he failed to object to those conditions at sentencing, and
thus "the sentencing court was never given an
opportunity to address any of the constitutional challenges
that defendant now lodges with this Court" (People v
Pena, 28 N.Y.3d 727, 730; see CPL 470.05 ).
Moreover, the narrow exception to the preservation rule is
not applicable here (see Pena, 28 N.Y.3d at 730). We
decline to exercise our power to review defendant's
contention as a matter of discretion in the interest of