Opinion
2007-1464 S CR.
Decided October 30, 2008.
Appeal from an order of the District Court of Suffolk County, First District (W. Gerald Asher, J.), entered September 10, 2007. The order granted defendant's motion to suppress physical evidence.
Order reversed on the law and matter remanded to the court below for a determination de novo, following a hearing, of defendant's motion to suppress physical evidence, in accordance with the decision herein.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
On October 28, 2005, defendant was convicted, in the County Court of Suffolk County (Steven Braslow, J.), pursuant to a plea and sentencing agreement, of violating Penal Law § 190.65, scheme to defraud in the first degree, and sentenced, inter alia, to five years' probation. In the course of that proceeding, defendant signed a form setting forth the conditions of his probation, which contained defendant's acknowledgment that he understood and accepted those conditions. The conditions included his consent to a search of his "place of abode" by a probation officer for "narcotic implements" and "illegal drugs." Defendant did not appeal from the judgment of conviction nor did he move to vacate the judgment, to be resentenced, or to modify the conditions of his sentence of probation.
On March 15, 2006, a probation officer searched defendant's home, asserting, according to defendant, the authority of the consent to search condition of defendant's probation, and allegedly discovered a shotgun and several vials of a human growth hormone, classified as a controlled substance. The People charged defendant with violating Penal Law § 265.01 (4), criminal possession of a weapon in the fourth degree, and Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree. Defendant moved to suppress the weapon and controlled substance, arguing (1) as the consent to search condition was not tailored to the offense for which he was convicted nor reasonably related to his rehabilitation, the search was unauthorized ( cf. People v Hale, 93 NY2d 454), (2) the trial court's statement, at sentencing, that there were to be no special conditions of probation, rendered this special condition void, and (3) even were the special condition valid, the officer had no grounds to conduct a search pursuant thereto. The court agreed that the consent to search condition of probation was invalid as not individually tailored to the offense or reasonably related to defendant's rehabilitation ( People v Hale, 93 NY2d at 462), and granted defendant's motion to suppress, reaching no other issue. The People appeal and we reverse.
Having failed to appeal from the County Court judgment of conviction or to invoke any of the remedies available to challenge the propriety of the consent to search condition of his probation, defendant would be barred from challenging the terms and conditions of that probation on an appeal from an amended judgment resentencing him upon a violation of a condition of that probation ( e.g. People v Anthony, 13 AD3d 1114 [2004]; People v Coy, 279 AD2d 794 [2001]; People v Holmes, 226 AD2d 1122 [1996]). Similarly, defendant may not collaterally attack that condition in the form of a motion to suppress evidence in a subsequent criminal proceeding ( see generally People v Latham, 90 NY2d 795, 799 [1997]). Accordingly, it remained for the court below to determine only whether the search was "rationally and reasonably related to the performance of [the probation officer's] duty" ( People v Huntley, 43 NY2d 175, 181 [1977]; e.g. People v Burry, 52 AD3d 856 [2008]; see also People v Jackson, 46 NY2d
171, 174 [1978]). Consequently, the order is reversed and the matter remanded to the court below for a determination de novo, following a hearing, on defendant's motion to suppress evidence.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.