People v. Gausney

Summary

The Appellate Division, First Department, modified Everett Gausney's conviction sentence for criminal sale of a controlled substance in the third degree. The court reduced probation from five years to three years, struck gang-related probation conditions and improperly imposed surcharges and fees, and otherwise affirmed the judgment.

Holdings

1. Challenges to certain probation conditions under Penal Law § 65.10(1) survive a valid appeal waiver and do not require preservation.
2. The court properly imposed the condition requiring defendant to avoid injurious or vicious habits, refrain from frequenting unlawful or disreputable places, and not consort with disreputable people.
3. The probation condition prohibiting gang paraphernalia and association with gangs or gang members had to be struck.
4. The surcharge and other fees improperly imposed as conditions of probation had to be struck because they were not reasonably related to defendant's rehabilitation or necessary to ensure that he would lead a law-abiding life.
5. The five-year probation sentence was excessive to the extent indicated and was reduced to three years of probation.
6. Defendant's facial challenges were unpreserved, and the court declined to review them in the interest of justice.

Questions Presented

1. Whether defendant's challenges to certain probation conditions survived his valid appeal waiver and could be raised without preservation.
2. Whether the probation condition requiring defendant to avoid injurious or vicious habits, refrain from unlawful or disreputable places, and not consort with disreputable people was reasonably necessary under Penal Law § 65.10.
3. Whether the gang-related probation condition was reasonably related to defendant's rehabilitation or necessary to ensure that he would lead a law-abiding life.
4. Whether the surcharge and other fees were properly imposed as conditions of probation.
5. Whether the five-year term of probation was excessive.

Disposition

other