| People v Clarke |
| 2017 NY Slip Op 08044 [155 AD3d 1242] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v David A.Clarke, Appellant. |
Jay Wilber, Public Defender, Binghamton (Michele A. Coleman of counsel), forappellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered October 7, 2014, convicting defendant upon his plea of guilty of the crimes of criminalsale of a controlled substance in the third degree (five counts), criminal possession of acontrolled substance in the third degree and criminal possession of a controlled substance in thefourth degree.
Following his sale of cocaine to an undercover police officer on five separate occasions,defendant was indicted and charged with criminal sale of a controlled substance in the thirddegree (five counts), criminal possession of a controlled substance in the third degree andcriminal possession of a controlled substance in the fourth degree. Prior to entering a guilty pleato the charged crimes, defendant applied for participation in the judicial diversion program(see CPL art 216). Following an evaluation and a hearing, County Court (Pelella, J.)denied defendant's request. Defendant subsequently pleaded guilty as charged with theunderstanding that his sentence would be capped at six years of imprisonment followed by threeyears of postrelease supervision. County Court (Cawley Jr., J.) thereafter sentenced defendant asa second felony offender to five years in prison followed by three years of postrelease supervisionupon each count of the indictment, with said sentences to run concurrently with one another.Defendant now appeals, contending that it was an abuse of discretion to deny his request forjudicial diversion and, further, that the sentence imposed was harsh and excessive.
[*2] Preliminarily, to the extent that defendant suggests that theagency to which he was referred was not authorized to perform his alcohol and drug assessment,challenges the sufficiency of the evaluation actually performed and/or faults the People forfailing to call the evaluator to testify at the hearing, we need note only that defendant failed toraise any objections in this regard at such hearing and, therefore, has failed to preserve theseissues for our review (see CPL 470.05 [2]). Turning to the merits, "under the programcreated by CPL article 216, whether an eligible defendant will be offered judicial diversionpursuant to that article remains within the trial court's discretion, and [a] defendant is notautomatically entitled to judicial diversion" (People v Meddaugh, 150 AD3d 1545, 1547 [2017]; seeCPL 216.05 [4]; People v Driscoll,147 AD3d 1157, 1159 [2017], lv denied 29 NY3d 1078 [2017]; People v Powell, 110 AD3d 1383,1384 [2013]; People v Buswell, 88AD3d 1164, 1165 [2011]). Pursuant to the statute, CPL 216.05 required County Court(Pelella, J.)—upon completion of the underlying hearing—to consider and makefindings of fact as to whether defendant was eligible for participation in the judicial diversionprogram, whether he had a history of alcohol or substance abuse or dependance, whether suchabuse or dependence was a contributing factor to his criminal behavior, whether his participationin the program could effectively address such abuse or dependence and, finally, whetherconfinement was or might be necessary for the protection of the public (see CPL 216.05[3] [b] [i]-[v]; People v Cora, 135AD3d 987, 989 [2016]).
Although County Court deemed defendant to be eligible for participation in the judicialdiversion program and concluded that defendant indeed "may have a history of alcohol orsubstance abuse," the court nonetheless denied defendant's application, finding that any suchhistory was "not a contributing factor to . . . defendant's criminal behavior."Defendant now argues that County Court erred in neglecting to address the remaining statutoryfactors and, in any event, abused its discretion in denying his application for participation in thejudicial diversion program. We disagree. Even assuming, without deciding, that County Courtindeed was required to consider and make express findings as to each of the enumerated statutoryfactors, we nonetheless do not find that the court abused its discretion in denying defendant'srequest for judicial diversion. Simply put, given defendant's extensive criminal history, whichincludes a conviction for a violent felony, the record does not reflect any basis upon which toconclude that granting defendant's request for judicial diversion would have been appropriate(see People v Driscoll, 147 AD3d at 1159; People v Powell, 110 AD3d at1384).
As for defendant's challenge to the severity of the sentence imposed, defendant was promisedthat his sentence would be capped at six years of imprisonment, and he ultimately was sentencedto five years in prison followed by three years of postrelease supervision. Upon reviewing therecord, we find no abuse of discretion or extraordinary circumstances warranting a reduction ofthe sentence in the interest of justice (see People v Georges, 151 AD3d 1402, 1403 [2017]).
Garry, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.