Opinion
360 KA 11-00686
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Elijah W. ADAMS, Defendant–Appellant. (Appeal No. 1.).
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from three judgments rendered by County Court on the same day. In appeal Nos. 1 and 2, defendant appeals from judgments convicting him upon his pleas of guilty of, respectively, criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and criminal possession of a controlled substance in the third degree (§ 220.16 [1] ). In appeal No. 3, defendant appeals from a judgment entered upon his admission that he violated the terms and conditions of his probation, revoking his probation, and sentencing him to concurrent terms of incarceration of 2 ? to 7 years on the underlying conviction of assault in the second degree (§ 120. 05[3] ), attempted assault in the second degree (§§ 110.00, 120.05[2] ), and reckless endangerment in the first degree (§ 120.25).
We reject defendant's contention in appeal Nos. 1 and 2 that the search by the probation officers of his home and a safe located therein was unlawful. Although probationers and parolees have a constitutional right to be free from unreasonable searches and seizures (see People v. Hale, 93 N.Y.2d 454, 459, 692 N.Y.S.2d 649, 714 N.E.2d 861 ; People v. Johnson, 94 A.D.3d 1529, 1531, 942 N.Y.S.2d 738, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767 ), “ ‘what may be unreasonable with respect to an individual who is not on parole [or probation] may be reasonable with respect to one who is' ” (Johnson, 94 A.D.3d at 1531, 942 N.Y.S.2d 738, quoting People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ). The conditions of defendant's probation regarding drug and alcohol use and prohibiting his ownership of firearms were a proper basis for the probation officers' search of his home and property therein (see Hale, 93 N.Y.2d at 462, 692 N.Y.S.2d 649, 714 N.E.2d 861 ; People v. Wheeler, 99 A.D.3d 1168, 1170, 951 N.Y.S.2d 791, lv. denied 20 N.Y.3d 989, 958 N.Y.S.2d 705, 982 N.E.2d 625 ). The search was carried out as part of the probation officers' duties as probation officers, and “the assistance of police officers at the scene did not render the search a police operation” (People
v. Johnson, 54 A.D.3d 969, 970, 864 N.Y.S.2d 132 ; see Johnson, 94 A.D.3d at 1532, 942 N.Y.S.2d 738 ; People v. Scott, 93 A.D.3d 1193, 1194, 940 N.Y.S.2d 411, lv. denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217, reconsideration denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 ).
Defendant contends that we must reverse the judgment in appeal No. 3 in the event that we reverse the judgments in appeal Nos. 1 and 2 (see generally People v. Pichardo, 1 N.Y.3d 126, 129, 769 N.Y.S.2d 791, 802 N.E.2d 141 ). We reject defendant's contention, inasmuch as we are affirming the judgments in appeal Nos. 1 and 2. We conclude, however, that the sentence in appeal No. 3 must be vacated. Assault in the second degree is a class D violent felony for which an indeterminate sentence is not authorized (see Penal Law § 70.02[1][c] ; [2][b]; People v. Delorenzo, 34 A.D.3d 868, 869, 823 N.Y.S.2d 564 ; see generally People v. Endresz, 1 A.D.3d 888, 888–889, 767 N.Y.S.2d 732 ). In addition, the indeterminate term of 2 ? to 7 years' imprisonment exceeded the authorized sentence for the class E nonviolent felony of attempted assault in the second degree (see § 70.00[2][e]; [3][b]; [4] ). “ ‘Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v. Davis, 37 A.D.3d 1179, 1180, 829 N.Y.S.2d 791, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 ). We therefore modify the judgment in appeal No. 3 by vacating the sentence, and we remit the matter to County Court “to afford defendant the opportunity to accept an amended lawful sentence or to withdraw his admission to the violation of probation” (People v. Jones, 118 A.D.3d 1361, 1362, 987 N.Y.S.2d 744 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.