| People v O'Keefe |
| 2013 NY Slip Op 08519 [112 AD3d 524] |
| December 19, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v John O'Keefe, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 11,2012, convicting defendant, upon his plea of guilty, of burglary in the third degree, andsentencing him, as a second felony offender, to a term of 2 to 4 years, unanimouslyaffirmed.
Although we conclude that the issue was not foreclosed by defendant's guilty plea(see People v DeYoung, 95AD3d 71 [2d Dept 2012]), we find that the court properly exercised its discretion insummarily denying defendant's request for an alcohol and substance abuse evaluationand related proceedings pursuant to CPL 216.05. Such an evaluation is permissive (Matter of Carty v Hall, 92AD3d 1191 [3d Dept 2012]), and the court was not required to make explicitfindings as to why it summarily denied the request. Given the colloquy between thecourt, prosecutor and defense counsel, it is clear that the court determined thatdefendant's very extensive criminal record, including numerous felony convictions, madehim an unsuitable candidate for a judicial diversion program, regardless of what anevaluation might reveal. There is no basis for disturbing that determination.Concur—Tom, J.P., Andrias, Saxe, DeGrasse and Richter, JJ.