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THE “CONSENT TO SEARCH” PROBATION CONDITION WAS NOT SUPPORTED BY THE NATURE OF DEFENDANT’S OFFENSE (SECOND DEPT).

The Second Department, eliminating the “consent to search” probation condition, determined the condition was not supported by the nature of defendant’s offense:

Appeal by the defendant from a judgment … convicting him of assault in the second degree, upon his plea of guilty, and sentencing him to a definite term of incarceration of one day, to be followed by a term of probation, which included as a condition Condition No. 28, requiring the defendant to consent to a search by a probation officer or a probation officer and his or her agent of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon, or contraband found during the search. * * *

… [T]he defendant was a first-time offender and was not armed with a weapon at the time he committed the offense. Additionally, the defendant has not been assessed as being in need of alcohol or substance abuse treatment. Under the circumstances, the consent to search condition of probation was improperly imposed because it was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life …. . People v Mensah, 2023 NY Slip Op 05622, Second Dept 11-8-22

Practice Point: Here the nature of defendant’s offense (assault second), coupled the lack of evidence that defendant abused drugs or alcohol, failed to support the “consent to search” probation condition.

 

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