Court of Appeals Strikes Improper Probation Condition
Following a domestic altercation in which he stabbed his husband with a kitchen knife, Mr. Brazeal was arrested and indicted. He ultimately pled guilty to attempted second-degree assault in exchange for the People’s recommended sentence of five years’ probation, an order of protection in favor of the complainant, and participation in a 26-week Abusive Partner Intervention Program. The Department of Probation requested that due to the nature of the offense, Mr. Brazeal should be subject to Box 28 — consent to warrantless search.
At sentencing, defense counsel objected to the consent to search condition, noting it was not a gun case, in which such a condition was typically imposed, and the weapon alleged was a common household knife. The sentencing court imposed the condition due to “the violent nature” of the incident and because Mr. Brazeal had prior “out-of-state contacts” that “also involve[d] violence.” The Appellate Division affirmed, referring to the weapon used during the offense and his “history of violence.”
The Court of Appeals reversed, striking the consent to warrantless search condition. The Court concluded that although Mr. Brazeal’s conviction was for a crime of violence, at no point was he shown to otherwise possess guns or illegal weapons, and the knife used in this incident “was an ordinary kitchen knife.” Moreover, contrary to the lower courts’ characterization of his “history of violence,” he had a prior conviction for destruction of property, a harassment conviction with “physical contact,” and a youthful offender adjudication for assault, the most recent of which was nearly 10 years before the present offense. Because the sentencing court abused its discretion by imposing a condition that was not “individually tailored in relation to the offense[ ]” or to Mr. Brazeal’s rehabilitation, the Court struck the probation condition.
Tammy E. Linn represented Mr. Brazeal