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ARGUMENT THAT PROBATION CONDITIONS ARE ILLEGAL SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT).

The Fourth Department noted that defendant’s argument that the conditions of his probation were illegal survived a waiver of appeal and the failure to preserve the error:

Defendant further contends … that the court imposed several unlawful conditions of probation. Initially, we note that defendant’s contentions are not encompassed by the valid waiver of the right to appeal because they are based on challenges to the legality of the sentence … . Additionally, although defendant failed to preserve those contentions for our review, there is a “narrow exception to [the] preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record” … , and that exception encompasses a contention that a “probation condition is unlawful because it is not reasonably related to rehabilitation or is outside the authority of the court to impose” … . We conclude that, inasmuch as defendant’s challenges to the conditions of probation here “implicate the legality of defendant’s sentence and any illegality is evident on the face of the record, those claims are not barred by . . . defendant’s failure to preserve them” … . …

With respect to the merits, the People correctly concede that the court erred in barring defendant from all use of the internet. The statute provides that a sentencing “court may require that the defendant comply with a reasonable limitation on his or her use of the internet . . . provided that the court shall not prohibit such sentenced offender from using the internet in connection with education, lawful employment or search for lawful employment” … . People v Castaneda, 2019 NY Slip Op 04860, Fourth Dept 6-14-19

 

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