Summary
holding there was no basis to impose conditions on defendant's use of alcohol following conviction for unlicensed operation where offense not impacted by alcohol use
Summary of this case from State v. PutnamOpinion
December 13, 1996
Appeal from the Suffolk County District Court, Joseph Klein, J.
Robert C. Mitchell, Riverhead (Alfred J. Cicale of counsel), for appellant.
James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Ronald E. Lipetz of counsel), for respondent.
MEMORANDUM.
Judgment of conviction for operating a motor vehicle without insurance unanimously affirmed.
Judgment of conviction for aggravated unlicensed operation of a motor vehicle unanimously modified on the law by deleting from the sentence imposed the conditions of probation relating to alcohol and narcotics except as indicated in this court's decision, and as so modified, affirmed.
Defendant signed a form containing five conditions of probation related to alcohol and four related to drugs. None of these conditions, which were set forth in the language of the form itself, had been stricken even though the form included the instruction, "Strike out inapplicable." On this appeal, the parties dispute the propriety of the special alcohol and narcotic conditions.
Penal Law § 65.10 (1) provides that the conditions of probation "shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so." Inasmuch as defendant admitted to the continued use of marihuana once or twice a year, the imposition of the following conditions did not constitute an improvident exercise of discretion: "(a) That you permit search of your person and seizure of any narcotic implements and/or illegal drugs found, such search to be conducted by a Probation Officer or a Probation Officer and his agent," and "(c) When ordered by the Probation Department, you are to submit to any recognized tests that are available to the Probation Department to determine whether you have been using drugs" (see, Penal Law § 221.05; cf., People v Grisanti, 126 A.D.2d 938, lv denied 69 N.Y.2d 950; People v Braun, 177 A.D.2d 981).
Since, upon the record, the incident giving rise to the subject offenses was not impacted by defendant's use of alcohol or narcotics, and since there is absent any indication that defendant is currently abusing the same but for his aforementioned use of marihuana, the remaining special alcohol and narcotic conditions are deemed stricken.
STARK, J.P., COLLINS and FLOYD, JJ., concur.