| People v Williams |
| 2013 NY Slip Op 02926 [105 AD3d 1428] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EricP. Williams, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered January 3, 2012. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea ofguilty of attempted criminal possession of a controlled substance in the third degree(Penal Law §§ 110.00, 220.16 [1]). We reject defendant's contention thatCounty Court erred in refusing to order judicial diversion instead of incarceration. Thecourt considered the statutory factors pursuant to CPL 216.05 (3) (b) in making itsdetermination, including whether defendant was eligible for diversion, whether he had ahistory of drug abuse, whether such abuse was a contributing factor to his criminalbehavior, whether diversion could effectively address such abuse, and whetherinstitutional confinement of defendant was necessary for the protection of the public.Courts are afforded great deference in making judicial diversion determinations, and weperceive no abuse of discretion here (see Matter of Carty v Hall, 92 AD3d 1191, 1192 [2012]; see generally People v Secore,102 AD3d 1059, 1060 [2013]; People v Dawley, 96 AD3d 1108, 1109 [2012], lvdenied 19 NY3d 1025 [2012]; People v Hombach, 31 Misc 3d 789, 792 [2011]). To theextent that defendant's contention that he was denied effective assistance of counselsurvives his guilty plea (seePeople v Hawkins, 94 AD3d 1439, 1440-1441 [2012], lv denied 19NY3d 974 [2012]), we conclude that his contention lacks merit (see generally Peoplev Ford, 86 NY2d 397, 404 [1995]). We note that, although defense counsel's requestthat defendant be evaluated pursuant to CPL 216.05 was improperly made afterdefendant entered his plea of guilty, the court ignored that procedural error and reachedthe judicial diversion issue on the merits. We further conclude that the sentence is notunduly harsh or severe. Present—Scudder, P.J., Smith, Centra, Carni and Sconiers,JJ.