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THE PROBATION CONDITION REQUIRING DEFENDANT TO AGREE TO SEARCHES OF HIS PERSON, VEHICLE AND RESIDENCE WAS NOT WARRANTED BY THE CONVICTION (LEAVING THE SCENE OF AN ACCIDENT); THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the probation condition requiring defendant to agree to searches of his person, residence and vehicle for drugs, weapons or contraband was not warranted by his conviction for leaving the scene of an accident. The issue need not be preserved for appeal:

… [T]he court improperly imposed, as a condition of probation, a requirement that defendant consent to a search by a probation officer of his person, vehicle, or residence for illegal drugs, drug paraphernalia, weapons, or contraband … . “Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted” … , and he “had no history of violence or use of weapons” (People v Hall, 228 AD3d at 467). His single misdemeanor conviction for marijuana possession preceded the instant offense by nearly a decade … . Thus, the consent to search condition was not “‘reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so'” … . We note that defendant’s challenge to the conditions of his probation did not require preservation … and would not be foreclosed even if the appeal waiver were valid … . People v Fernandez, 2024 NY Slip Op 06671, First Dept 12-31-24

Practice Point: A probation condition requiring that defendant agree to searches of his person, vehicle and residence must be warranted by the nature of the underlying conviction. The condition was not warranted for “leaving the scene of an accident.”​

 

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