SUPREME COURT of the STATE of NEW YORK Appellate Division, Fourth Judicial Department
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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FOURTH JUDICIAL DEPARTMENT DECISIONS FILED SEPTEMBER 29, 2017 HON. GERALD J. WHALEN, PRESIDING JUSTICE HON. NANCY E. SMITH HON. JOHN V. CENTRA HON. ERIN M. PERADOTTO HON. EDWARD D. CARNI HON. STEPHEN K. LINDLEY HON. BRIAN F. DEJOSEPH HON. PATRICK H. NEMOYER HON. JOHN M. CURRAN HON. SHIRLEY TROUTMAN HON. JOANNE M. WINSLOW, ASSOCIATE JUSTICES MARK W. BENNETT, CLERK SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 940 KAH 16-01170 PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. THE PEOPLE OF THE STATE OF NEW YORK EX REL. GERALD SMITH, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER MICHELLE ARTUS, SUPERINTENDENT, LIVINGSTON CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT. CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT. GERALD SMITH, PETITIONER-APPELLANT PRO SE. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (HEATHER MCKAY OF COUNSEL), FOR RESPONDENT-RESPONDENT. Appeal from a judgment of the Supreme Court, Livingston County (Dennis S. Cohen, A.J.), dated February 26, 2015 in a habeas corpus proceeding. The judgment denied the petition. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that County Court had lost jurisdiction to sentence him because of its unreasonable delay in imposing sentence, and that the sentencing judge had erred in failing to recuse himself. We conclude that Supreme Court properly denied the petition. As an initial matter, petitioner’s contention in his pro se supplemental brief that respondent’s return should have been disregarded and his petition granted because the return failed to comply with the requirements of CPLR 7008 is improperly raised for the first time on appeal (see generally People ex rel. Peoples v New York State Dept. of Corr. Servs., 117 AD3d 1486, 1487, lv denied 23 NY3d 909), and it is without merit in any event (see generally People ex rel. Caswell v New York State Div. of Parole, 11 AD3d 1008, 1008-1009, lv denied 4 NY3d 701). With respect to the merits of the petition, habeas corpus relief is unavailable because petitioner’s contentions “can be raised on his pending direct appeal from the judgment of conviction or by way of a CPL article 440 motion” (People ex rel. Thomas v Dray, 197 AD2d 853, 853, lv denied 82 NY2d 663, rearg denied 83 NY2d 847; see People ex rel. Martinez v Graham, 98 AD3d 1312, 1312, lv denied 20 NY3d 853; People ex rel. Lanfair v Corcoran, 60 AD3d 1351, 1351, lv denied 12 NY3d 714). Moreover, petitioner’s recusal contention would not entitle him to immediate release even if it had -2- 940 KAH 16-01170 merit (see generally People v Warren, 100 AD3d 1399, 1401), and it therefore is unavailable as a basis for habeas corpus relief for that reason as well (see People ex rel. Douglas v Vincent, 50 NY2d 901, 903; People ex rel. Cole v Graham, 147 AD3d 1350, 1351, lv denied 29 NY3d 914). We have reviewed petitioner’s remaining contentions in his pro se supplemental brief and conclude that none warrants reversal or modification of the judgment. Entered: September 29, 2017 Mark W. Bennett Clerk of the Court SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 941 TP 17-00420 PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. IN THE MATTER OF PAUL J. CHISOLM, PETITIONER, V MEMORANDUM AND ORDER ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT. WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT. Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered February 28, 2017) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various inmate rules. It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules. Initially, we conclude that there is substantial evidence to support the determination with respect to inmate rule 113.15 (7 NYCRR 270.2 [B] [14] [v]), inasmuch as petitioner pleaded guilty to violating that rule (see Matter of Liner v Fischer, 96 AD3d 1416, 1417). Petitioner failed to exhaust his administrative remedies with respect to his remaining contentions because he failed to raise those contentions in his administrative appeal, and this Court “has no discretionary power to reach” them (Matter of Nelson v Coughlin, 188 AD2d 1071, 1071, appeal dismissed 81 NY2d 834; see Matter of Polanco v Annucci, 136 AD3d 1325, 1325). Entered: September 29, 2017 Mark W. Bennett Clerk of the Court SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 942 KA 15-00321 PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER JOSEPH A. SARACENI, JR., DEFENDANT-APPELLANT. (APPEAL NO. 1.) THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered February 5, 2015. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the first degree. It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property and to submit to chemical tests of his breath, blood or urine, and by striking special condition nine as a condition of probation, and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [1]). We reject defendant’s contention that County Court erred in failing to state its reasons for denying youthful offender status (see People v Minemier, 29 NY3d 414, 419-421). The valid waiver of the right to appeal forecloses defendant’s challenge to the court’s discretionary determination to deny youthful offender status (see People v Pacherille, 25 NY3d 1021, 1024; People v Daigler, 148 AD3d 1685, 1686; People v Bailey, 137 AD3d 1620, 1621, lv denied 27 NY3d 1128). Contrary to defendant’s contention, the court was not required to explain that the waiver of the right to appeal would specifically encompass the court’s discretionary determination on youthful offender status (see generally People v Kemp, 94 NY2d 831, 833). We decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see People v Agee, 140 AD3d 1704, 1704-1705, lv denied 28 NY3d 925). -2- 942 KA 15-00321 Defendant next contends that various conditions of his probation are not authorized by Penal Law § 65.10. We agree with defendant that his contention is not precluded by the waiver of the right to appeal and does not require preservation inasmuch as his challenges to those conditions implicate the legality of the sentence (see People v King, 151 AD3d 1651, 1652; see generally People v Letterlough, 86 NY2d 259, 263 n 1). We agree with defendant that the document he signed requiring him to consent to waive his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property, and to submit to chemical tests of his breath, blood, or urine, is not enforceable because it was not related to the probationary goal of rehabilitation (see People v Mead, 133 AD3d 1257, 1258). The waiver and consent to search was ostensibly based on defendant’s acknowledgment that his criminal behavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant was under the influence of alcohol or drugs when he committed the offense or had a history of drug or alcohol abuse (see id.; cf. King, 151 AD3d at 1653). For similar reasons, we agree with defendant that special condition nine of the conditions of probation, which required him to abstain from the use or possession of alcoholic beverages and to submit to appropriate alcohol testing, is also not enforceable and must be stricken. Contrary to defendant’s contention, special condition four of the conditions of probation is taken verbatim from Penal Law § 65.10 (2) (b) and is therefore a lawful condition of probation. Likewise, special conditions 17, 18, and 21 are lawful conditions of probation pursuant to section 65.10 (4-a) (b). Defendant’s remaining challenges to the legality of certain other conditions of probation are without merit. Finally, defendant’s constitutional challenges to certain conditions of probation are not preserved for our review (see King, 151 AD3d at 1654; People v Rawson, 125 AD3d 1323, 1324, lv denied 26 NY3d 934; see generally People v Pena, 28 NY3d 727, 730), and we decline to exercise our power to review those challenges as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Entered: September 29, 2017 Mark W. Bennett Clerk of the Court SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 943 KA 15-00695 PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.