| People v Driscoll |
| 2017 NY Slip Op 01032 [147 AD3d 1157] |
| February 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RashadDriscoll, Appellant. |
Linda M. Campbell, Syracuse, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered March 19, 2015, convicting defendant upon his plea of guilty of the crimes of criminalsale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fourth degree.
Defendant was charged in a five-count indictment with criminal sale of a controlledsubstance in the third degree (three counts) and other drug-related crimes stemming from the saleof cocaine on three occasions. He was subsequently charged in a three-count indictment withcriminal sale of a controlled substance in the third degree and other crimes that followed aseparate sale of cocaine and his conduct in resisting arrest. County Court consolidated theindictments and denied defendant's pretrial motions to suppress evidence. Defendant thereafterpleaded guilty to criminal sale of a controlled substance in the third degree in satisfaction of thefirst indictment and, under count two of the second indictment, to criminal possession of acontrolled substance in the fourth degree, in satisfaction of that indictment, and admitted hispredicate drug-related felony conviction. Consistent with the plea agreement, the court imposedconcurrent prison sentences of six years with three years of postrelease supervision on eachconviction. Defendant appeals.
We affirm. Defendant contends that he was deprived of the effective assistance of counsel inthat counsel failed to file an application requesting judicial diversion to a substance abusetreatment program pursuant to CPL 216.05. This claim is unpreserved for our review, as [*2]defendant failed to raise it before County Court and the record doesnot reflect that he moved to withdraw his plea on this ground (see People v Williams, 140 AD3d1535, 1536 [2016], lv denied 28 NY3d 975 [2016]; People v Rich, 140 AD3d 1407,1407 [2016], lv denied 28 NY3d 936 [2016]). In any event, "in the context of a guiltyplea, a defendant has been afforded meaningful representation when he or she receives anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel"(People v Khan, 139 AD3d1261, 1264 [2016] [internal quotation marks and citation omitted], lv denied 28NY3d 932 [2016]). Here, defendant's assigned counsel opposed consolidation of the indictments,pursued discovery, made appropriate pretrial motions and competently represented him duringthe pretrial hearings and secured a favorable plea deal. Defendant then retained new counsel, whoreviewed the case history and represented him at the time of the plea.[FN*] Given that defendant could have receivedconsecutive sentences on each of the four charged drug sales (see Penal Law§ 70.25; People vDean, 8 NY3d 929, 931 [2007]), and that the maximum second felony drug offendersentence for the top count to which he pleaded guilty, a class B felony, was 12 years (seePenal Law §§ 70.70 [1] [b]; [3] [b] [i]; 220.39 [1]), defendant benefitted froma favorable plea deal. Further, judicial diversion to drug treatment is discretionary (see People v Powell, 110 AD3d1383, 1384 [2013]) and, even assuming that he is an "[e]ligible defendant" (CPL 216.00[1]), the record does not reflect any basis upon which to believe that the court would havedeemed it appropriate in view of defendant's extensive criminal history (see CPL 216.05[3] [b] [v]; [4]; People v Pittman,140 AD3d 989, 989 [2016]; Peoplev Carper, 124 AD3d 1319, 1320 [2015], lv denied 25 NY3d 949 [2015]; compare People v Cora, 135 AD3d987, 989 [2016]). Accordingly, were this claim properly before us, we would find thatdefendant received meaningful representation.
Finally, we find no abuse of discretion or extraordinary circumstances warranting a reductionof the agreed-upon sentence in the interest of justice (see People v Woodruff, 136 AD3d 1073, 1074 [2016]).
Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:When defendant expressed thathe was not happy with the plea offer, which had remained open for over six months, the Peoplemade clear that the offer would not change.