        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1206
KA 14-00228
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD E. MEAD, JR., DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered December 4, 2013. The judgment convicted
defendant, upon his Alford plea, of attempted assault in the second
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 a search of his home and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his Alford plea of attempted assault in the second degree (Penal
Law §§ 110.00, 120.05 [2]). Contrary to defendant’s contention, his
waiver of the right to appeal was knowing, voluntary and intelligent
(see People v Bradshaw, 18 NY3d 257, 264-265), and that waiver
encompasses his challenge to the length of the term of probation
imposed (see People v Lopez, 6 NY3d 248, 256). To the extent that the
written waiver of the right to appeal included nonwaivable rights,
those rights are “excluded from the scope of the waiver [and] the
remainder of the waiver is valid and enforceable” (People v Williams,
___ AD3d ___, ___ [Oct. 2, 2015] [internal quotation marks omitted]).

     We agree with defendant, however, that the waiver of the right to
appeal does not encompass his challenge to the condition of probation
that required him to sign a consent to waive his Fourth Amendment
right protecting him from a search of his home on the ground that it
is related to defendant’s “drug/alcohol abuse,” inasmuch as that
condition was not part of the plea agreement (see generally People v
Leiser, 124 AD3d 1349, 1350). We also agree with defendant that the
condition does not relate to “the probationary goal of rehabilitation”
and thus is not enforceable on that ground (People v Hale, 93 NY2d
454, 460; cf. People v Schunk, 269 AD2d 857, 857). Indeed, the
                                 -2-                          1206
                                                         KA 14-00228

presentence report indicated that the 51-year-old defendant, a first-
time offender, does not have a history of drug or alcohol abuse and
that he was not under the influence of drugs or alcohol at the time of
the offense. It is well established that “a probationer’s home is
protected by the constitutional requirement that searches be
reasonable . . . [A] probationer loses some privacy expectations and
some part of the protections of the Fourth Amendment, but not all of
both” (Hale, 93 NY2d at 459). We therefore modify the judgment by
striking as a condition of probation the requirement that defendant
consent to the waiver of his Fourth Amendment right protecting him
from a search of his home.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
