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

360
KA 11-00686
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered February 24, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

      It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     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
2a 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 NY2d 454, 459; People v Johnson, 94
AD3d 1529, 1531, lv denied 19 NY3d 974), “ ‘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 AD3d at 1531,
quoting People v Huntley, 43 NY2d 175, 181). The conditions of
                                 -2-                           360
                                                         KA 11-00686

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 NY2d
at 462; People v Wheeler, 99 AD3d 1168, 1170, lv denied 20 NY3d 989).
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 AD3d 969, 970; see Johnson, 94 AD3d at 1532; People v Scott, 93
AD3d 1193, 1194, lv denied 19 NY3d 967, reconsideration denied 19 NY3d
1001).

     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 NY3d 126, 129). 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 AD3d
868, 869; see generally People v Endresz, 1 AD3d 888, 888-889). In
addition, the indeterminate term of 2a 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 AD3d 1179, 1180, lv denied 8 NY3d 983). 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 AD3d
1361, 1362).




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
