| People v Buswell |
| 2011 NY Slip Op 07528 [88 AD3d 1164] |
| October 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alex C.Buswell, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered January 7, 2011, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the fifth degree.
Defendant was charged in a three-count indictment with various crimes after he sold ecstasyto a police informant during a controlled buy operation. Pursuant to a plea agreement, he entereda plea of guilty to attempted criminal sale of a controlled substance in the fifth degree insatisfaction of the indictment and purportedly waived his right to appeal. County Court deniedhis subsequent motion to withdraw his plea and imposed the agreed-upon sentence of 90 days injail followed by five years of probation. Defendant now appeals, arguing that the court shouldhave granted his motion based upon the ineffectiveness of his counsel.
Although defendant's ineffective assistance of counsel argument implicates the voluntarinessof his guilty plea and thus survives his appeal waiver (see People v Shurock, 83 AD3d 1342, 1344 [2011]; People v Fitzgerald, 56 AD3d 811,812 [2008]), defendant's argument in that regard is unavailing. His primary contention in supportof his motion to withdraw his plea was that his counsel failed to advise him regarding the judicialdiversion program created by CPL article 216. We note that whether an eligible defendant will beoffered judicial diversion [*2]pursuant to that article is within thetrial court's discretion (see CPL 216.05 [4]). Here, in denying defendant's withdrawalmotion, County Court stated that under the circumstances of this case it would not have exercisedits discretion in defendant's favor even if an application had been made. Inasmuch as judicialdiversion would not have been available to defendant and he has produced no other "evidence ofinnocence, fraud or mistake in the inducement" (People v Waters, 80 AD3d 1002, 1003 [2011], lv denied 16NY3d 858 [2011]; see People vMitchell, 73 AD3d 1346, 1347 [2010], lv denied 15 NY3d 922 [2010]), thecourt did not abuse its discretion in denying defendant's motion to withdraw his plea. Defendant'sremaining contentions have been considered and found to be without merit.
Malone Jr., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Saratoga County for further proceedingspursuant to CPL 460.50 (5).