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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION REQUIRING CONSENT TO WARRANTLESS SEARCHES; IN THE PLEA PROCEEDINGS, DEFENDANT ADMITTED PUNCHING THE VICTIM; THE PROBATION CONDITION ALLOWING SEARCHES FOR DRUGS AND WEAPONS HAD NO CONNECTION TO THE UNDERLYING OFFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) a waiver of appeal does not preclude challenging a condition of probation requiring warrantless searches, and (2) there was no basis for requiring defendant to consent to warrantless searches:

… [D]efendant’s challenge to the condition of probation requiring that he consent to warrantless searches survives even a valid waiver … . Here, during the plea proceedings, defendant admitted that he intentionally caused injury to the victim by punching him with a closed fist. The Department of Probation recommended that, as a condition of probation, defendant consent to warrantless searches for illegal drugs and weapons to help ensure the safety of the public and probation officers. We find that the condition of probation was not reasonably related to defendant’s rehabilitation, given that defendant’s conviction did not involve the use of a weapon and did not appear connected to the sale or use of drugs … . People v Thomas, 2024 NY Slip Op 06427, First Dept 12-19-24

Practice Point: A waiver of appeal does not preclude a challenge to a probation condition requiring consent to warrantless searches.

Practice Point: The probation condition requiring consent to warrantless searches must have some connection to the underlying offense. Searches for drugs and weapons had no connection to the underlying offense in this case where defendant admitted punching the victim with his fist.

 

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