By Acosta, P.J., Renwick, Manzanet-Daniels, Singh, JJ. 9990. In re Kennedy Cobb, pet-ap, v. New York State Department of Corrections and Community Supervision res-res — Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), and Arnold & Porter Kaye Scholer LLP, New York (Cathy M. Liu of counsel), for ap — Letitia James, Attorney General, New York (Mark S. Grube of counsel), for res — Judgment, Supreme Court, Bronx County (Howard Sherman, J.), entered on or about February 8, 2018, which, insofar as appealed from as limited by the briefs, denied the petition seeking an order vacating the special condition of parole imposed on petitioner by respondents, on October 27, 2016, that prohibits him from traveling under any circumstances to the borough of Queens, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition to vacate the special condition granted, and the matter remanded to respondents for issuance of a new travel restriction. In a 2010 Queens County case, petitioner pled guilty to assault in the second degree. The allegations against him stated that he poured boiling water on his domestic partner, punched her, and repeatedly raped her while her skin was peeling off, leaving her with multiple second-degree burns. Petitioner was sentenced to a prison term of six years to be followed by five years of post-release supervision. Upon his conviction, the court issued a full Order of Protection on behalf of the victim. On February 24, 2016, petitioner was released to post-release supervision subject to the standard conditions of release, as well as a number of special conditions, including, as relevant here, special condition 15, prohibiting him from “associat[ing] in any way or communicat[ing] by any means with the victim [ ] without the permission of the P.O.,” and Special Condition 26, requiring him to “comply with all Orders of Protection.” On April 28, 2016, petitioner was arrested and charged with the misdemeanor offense of criminal contempt in the second degree and the violation of harassment in the second degree, based on an allegation made by the victim to petitioner’s parole officer that he approached her in Far Rockaway, Queens. Subsequently, a jury acquitted petitioner, and the case was dismissed and sealed. Thereafter, petitioner was informed that he would be required to sign several new conditions of release, including Special Condition 3 stating, “I will not leave New York City… [including Queens] without written permission from my parole officer (including work purposes). I understand that I am not to travel under any circumstances to the borough of Queens.” Queens is the borough in which the victim resides. Petitioner commenced the instant article 78 proceeding seeking reversal of the prohibition of travel to Queens. Petitioner argues that this special condition must be vacated as arbitrary and capricious since it barred petitioner from the entire borough of Queens under all circumstances and without any clear right to seek, or ability to obtain, a waiver from respondents. Respondents state that they permit petitioner to request permission from his parole officer to travel to Queens on a case-by-case basis if he has a legitimate need to travel to that borough. In fact, petitioner requested and was granted permission to travel to Queens to get his belongings from Rikers Island. We agree with petitioner’s interpretation of the restriction. Release conditions that implicate certain fundamental rights, such as the right to travel and the right to associate, have been held permissible as long as “reasonably related” to a petitioner’s criminal history and future chances of recidivism (Matter of Williams v. New York State Div. of Parole, 71 AD3d 524, 526 [1st Dept 2010], lv denied 15 NY3d 710 [2010], appeal dismissed 15 NY3d 770 [2010]; see also Matter of Williams v. Department of Corr. & Community Supervision, 136 AD3d 147, 159, 164-165 [1st Dept 2016], appeal dismissed 29 NY3d 990 [2017]). The special condition, as noted, provides, “I will not leave New York City… [including Queens] without written permission from my parole officer (including work purposes). I understand that I am not to travel under any circumstances to the borough of Queens.” Barring petitioner from the entire county of Queens under all circumstances, without any clear right to seek, or ability to obtain, a waiver from respondents, is a categorical ban impinging upon his rights to travel and association, and, for this reason alone, the travel restriction must be vacated as arbitrary and capricious, as it is not “reasonably related” to petitioner’s criminal history and future chances of recidivism (Matter of Williams, 71 AD3d at 526). Accordingly, we remand this matter for respondents to issue a new travel restriction. The restriction must be clear and “reasonably related” to petitioner’s criminal history and future chance of recidivism (Matter of Williams, 71 AD3d at 526). Unlike the vacated restriction, the new restriction should specify that any travel restrictions are subject to case-by-case exceptions for legitimate reasons, which petitioner may request from his parole officer. We have considered petitioner’s remaining arguments and find them unavailing. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Friedman, J.P., Renwick, Kapnick, Gesmer, Kern, JJ. 10093-10093A. PEOPLE, res, v. Dionis Mejia, def-ap — Myers & Galiardo LLP, New York (Matthew D. Myers of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for res — Judgment, Supreme Court, New York County (Edward J. McLaughlin, J. at initial suppression hearing; Bonnie G. Wittner, J. at independent source hearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered May 6, 2016, convicting defendant of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 17 years, and order, same court (Daniel P. FitzGerald, J.), entered on or about December 7, 2017, which denied defendant’s CPL 440.10 motion to vacate the judgment, unanimously affirmed. Defendant’s legal insufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. There is no basis for disturbing the jury’s determinations concerning identification and credibility. The record supports the court’s determination that, notwithstanding an unduly suggestive lineup, the witnesses had an independent source for their in-court identifications of defendant (see Neil v. Biggers, 409 US 188, 199—200 [1972]; People v. Williams, 222 AD2d 149, 153 [1st Dept 1996], lv denied 88 NY2d 1072 [1996]). Among other things, each of the witnesses at issue had an ample opportunity to observe defendant at the time of the crime, and each witness made a detailed, accurate description. Defendant’s remaining contentions regarding the admissibility of evidence, the prosecutor’s summation and the court’s charge are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The court properly denied defendant’s motion to vacate the judgment, made on the ground of ineffective assistance of counsel. The court conducted a thorough evidentiary hearing, including the testimony of trial counsel and several witnesses whom defendant claims should have been called at trial. There is no basis for disturbing the court’s credibility determinations. We conclude that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713—714 [1998]; Strickland v. Washington, 466 US 668 [1984]). Defendant has not shown that counsel’s choices regarding calling or interviewing potential witnesses fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
