188 A.D.3d 1354
N.Y. App. Div.2020Background
- Defendant indicted for third-degree rape and two counts of endangering the welfare of a child based on allegations of a sexual relationship with a minor and providing alcohol to a minor.
- In full satisfaction of the indictment, defendant pleaded guilty to one count of endangering the welfare of a child (providing alcohol to a minor) and agreed to three years' probation and an appeal waiver; a related sex charge was dismissed.
- At sentencing, defendant objected to probation conditions drawn from Penal Law § 65.10(4-a) (internet/social‑media restrictions, no frequenting child‑congregating places, sex‑offender evaluation/treatment), arguing they apply only to convicted sex offenders.
- County Court retained those conditions, citing the totality of circumstances: victim often slept at defendant’s residence, sometimes in his bed; defendant had seen the victim naked; neighbors reported moaning; victim had mental‑health vulnerabilities and defendant gave gifts and controlled her phone.
- Defendant denied sexual contact; appellate court reviewed whether imposing § 65.10(4‑a) conditions on a non‑sex‑offense conviction was lawful and whether the challenge was preserved despite the plea and appeal waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a sentencing court may impose § 65.10(4‑a) "sex‑offender" probation conditions on a defendant not convicted of a sex offense | People: Court may impose reasonable conditions under § 65.10 if related to rehabilitation and necessary to ameliorate the conduct | Romanelli: Conditions are unlawful because he was not convicted of a sex crime | Affirmed — Court may impose § 65.10(4‑a) conditions so long as they are reasonably related to rehabilitation and necessary/appropriate to ameliorate the conduct or prevent incarceration; here conditions were reasonable |
| Whether the challenge to probation conditions was preserved despite plea and appeal waiver | People: An illegal‑sentence challenge is not barred by an appeal waiver | Romanelli: (implicit) waiver/plea forecloses appellate review | Held — Appeal waiver does not bar claim that sentence is illegal; defendant preserved the claim by objecting at sentencing |
Key Cases Cited
- People v Fishel, 128 A.D.3d 15 (2015) (appeal waiver does not bar an illegal‑sentence challenge)
- People v King, 151 A.D.3d 1651 (2017) (same principle regarding illegal‑sentence review)
- People v Williams, 300 A.D.2d 825 (2002) (preservation of sentencing‑condition objections)
- People v Donaldson, 110 A.D.3d 1120 (2013) (statutory scope of probation conditions and court discretion)
- People v Hale, 93 N.Y.2d 454 (1999) (probation conditions may include any reasonably related to rehabilitation)
- People v Brown, 62 A.D.3d 1209 (2009) (distinguishing endangering counts not premised on sexual conduct)
- People v Wahl, 302 A.D.2d 976 (2003) (upholding probation conditions as necessary to prevent incarceration)