People v. Tompson

Summary

The Appellate Division, First Department modified the defendant's probation sentence by striking conditions requiring support of dependents and prohibiting gang paraphernalia or association, finding no evidentiary support for those conditions. The court otherwise affirmed the judgment, declined to review several constitutional challenges as unpreserved, and held that the defendant's appeal waiver foreclosed review of certain as-applied claims.

Holdings

1. A probation condition requiring a defendant to support dependents and meet other family responsibilities must be supported by evidence relevant to the defendant; because defendant had no children and the record contained no supporting evidence, the condition was stricken.
2. The probation conditions requiring defendant to refrain from wearing or displaying gang paraphernalia and from associating with gangs or gang members were stricken because the record contained no evidence supporting them.
3. The sentencing court properly imposed conditions requiring defendant to avoid injurious or vicious habits and disreputable places and people, pursue suitable employment, study, or training, submit proof of that activity, undergo testing for alcohol and illegal substances, and participate in substance-abuse programming.
4. The court declined to strike probation condition 10 because defendant had paid the mandatory surcharge and fees, rendering the challenge moot.
5. The defendant's valid appeal waiver barred review of his constitutional due-process challenge to the probation-conditions form and his as-applied vagueness and First Amendment challenges, but did not bar facial constitutional challenges.
6. The defendant's constitutional challenges were unpreserved, and the court declined to review them in the interest of justice.

Questions Presented

1. Whether the probation conditions requiring defendant to support dependents and meet other family responsibilities, and to refrain from gang paraphernalia and gang associations, were supported by the record and authorized by law.
2. Whether the remaining challenged probation conditions were reasonably necessary to ensure that defendant led a law-abiding life or to assist him in doing so.
3. Whether the defendant's appeal waiver barred his constitutional challenges to the probation conditions.
4. Whether the defendant's unpreserved constitutional challenges should be reviewed in the interest of justice.
5. Whether the challenge to probation condition 10 was moot because defendant had paid the mandatory surcharge and fees.

Disposition

affirmed