| People v Powell |
| 2013 NY Slip Op 07089 [110 AD3d 1383] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAlonzo T. Powell, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered December 7, 2012, convicting defendant upon his plea of guilty ofthe crimes of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree, and violating the terms of hisprobation.
Defendant was charged in two separate indictments with various drug-relatedoffenses and, in connection therewith, applied for participation in the judicial diversionprogram (see CPL art 216). After considering the submissions tendered bydefendant and the People, County Court denied defendant's application. Thereafter, infull satisfaction of both indictments, as well as a probation violation, defendant pleadedguilty to criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree and, further, admitted violatingthe terms of his probation. Defendant then was sentenced, as a second felony offender, tothe agreed-upon aggregate prison term of 4½ years followed by three years ofpostrelease supervision. This appeal by defendant ensued.
Defendant's sole argument upon appeal is that County Court abused its discretion indenying his application for participation in the judicial diversion program. To the extentthat defendant did not abandon this issue by failing to request a hearing in this regard(see CPL 216.05 [3] [a]), we nonetheless find defendant's argument to be lackingin merit. "Courts are [*2]afforded great deference inmaking judicial diversion determinations" (People v Williams, 105 AD3d 1428, 1428 [2013], lvdenied 21 NY3d 1021 [2013] [citations omitted]; see People v Buswell, 88AD3d 1164, 1165 [2011]; see also Matter of Carty v Hall, 92 AD3d 1191, 1192[2012]). Inasmuch as the record before us reflects that County Court denied defendant'sapplication based upon his extensive criminal history and threat to public safety, wediscern no abuse of discretion here (see People v Williams, 105 AD3d at 1428).Accordingly, the judgment of conviction is affirmed.
Stein, J.P., McCarthy and Spain, JJ., concur. Ordered that the judgment is affirmed.