People v. Whindleton

54 A.D.3d 422, 862 N.Y.S.2d 295

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 19, 2008
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Loehr, J.), rendered August 2, 2006, convicting him of criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that a condition of probation, which precluded him from residing with his mother and his siblings, violated Penal Law § 65.10 and the United States Constitution. Under the circumstances of this case, the County Court was authorized to impose this condition of probation since it had a rehabilitative purpose, and was necessary to ameliorate the conduct which gave rise to the offense and to prevent the incarceration of the defendant (see Penal Law § 65.10 [1], [2], [5]; People v Rocco, 309 AD2d 882 [2003]; People v Myatt, 248 AD2d 68 [1998]). Furthermore, there was a substantial showing that the challenged condition was reasonably and necessarily related to the rehabilitative and ameliorative purposes of the statute (see Farrell v Burke, 449 F3d 470, 497 [2006]; Birzon v King, 469 F2d 1241, 1243 [1972]; cf. Tremper v Ulster County Dept. of Probation, 160 F Supp 2d 352 [2001]).

The defendant’s constitutional claim is without merit. Rivera, J.P., Lifson, Miller, Garni and Eng, JJ., concur.