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WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department determined the denial of youthful offender status was not appealable as it was encompassed by the waiver of appeal. The Fourth Department further determined the purported waiver of defendant’s Fourth Amendment rights as a condition of probation was not valid because there was no relationship between the waiver and the sexual-abuse offense to which defendant pled guilty. The invalid conditions allowed searches of his person, home and personal property, breath, blood and urine testing, and prohibited use or possession of alcohol:

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Defendant … contends that various conditions of his probation are not authorized by Penal Law § 65.10. We agree with defendant that his contention is not precluded by the waiver of the right to appeal and does not require preservation inasmuch as his challenges to those conditions implicate the legality of the sentence … . We agree with defendant that the document he signed requiring him to consent to waive his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property, and to submit to chemical tests of his breath, blood, or urine, is not enforceable because it was not related to the probationary goal of rehabilitation … . The waiver and consent to search was ostensibly based on defendant’s acknowledgment that his criminal behavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant was under the influence of alcohol or drugs when he committed the offense or had a history of drug or alcohol abuse … . For similar reasons, we agree with defendant that special condition nine of the conditions of probation, which required him to abstain from the use or possession of alcoholic beverages and to submit to appropriate alcohol testing, is also not enforceable and must be stricken. People v Saraceni, 2017 NY Slip Op 06732, Fourth Dept 9-29-17

CRIMINAL LAW (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/CONSTITUTIONAL LAW (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/SEARCH AND SEIZURE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/PROBATION (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/WAIVER OF APPEAL (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/SEXUAL ABUSE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))

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