| People v Carper |
| 2015 NY Slip Op 00064 [124 AD3d 1319] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vVincent D. Carper, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Andrew M. Molitor of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered March 4, 2013. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). Contrary to defendant's contention, County Court did not errin summarily denying his application for judicial diversion pursuant to CPL 216.05."Courts are afforded great deference in making judicial diversion determinations" (People v Williams, 105 AD3d1428, 1428 [2013], lv denied 21 NY3d 1021 [2013]), and we perceive noabuse of discretion here. Also contrary to defendant's contention, the court did not err infailing to order an alcohol and substance abuse evaluation before denying his application.According to the plain language of CPL 216.05 (1), "[s]uch an evaluation is permissive"(People v O'Keefe, 112AD3d 524, 524 [2013], lv denied 23 NY3d 1023 [2014]), and thedetermination whether to order such an evaluation "clearly lies within the discretion ofthe court" (Matter of Carty vHall, 92 AD3d 1191, 1192 [2012]). Here, we perceive no abuse of discretion.Furthermore, "the court was not required to make explicit findings as to why itsummarily denied" defendant's application (O'Keefe, 112 AD3d at 525). We notein any event that the court's decision denying the application is supported by defendant's"extensive criminal history and threat to public safety" (People v Powell, 110 AD3d1383, 1384 [2013]). Present—Scudder, P.J., Centra, Fahey, Lindley andDeJoseph, JJ.