People v O'Keefe

People v O'Keefe 2013 NY Slip Op 08519 Decided on December 19, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2013
Tom, J.P., Andrias, Saxe, DeGrasse, Richter, JJ.
11388 828/12

[*1]The People of the State of New York, Respondent,

v

John O'Keefe, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Allison Haupt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J.
Foncello of counsel), for respondent.

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, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.

Although we conclude that the issue was not foreclosed by defendant's guilty plea (see People v DeYoung, 95 AD3d 71 [2d Dept 2012]), we find that the court properly exercised its discretion in summarily denying defendant's request for an alcohol and substance abuse evaluation and related proceedings pursuant to CPL 216.05. Such an evaluation is permissive (Matter of Carty v Hall, 92 AD3d 1191 [3d Dept 2012]), and the court was not required to make explicit findings as to why it summarily denied the request. Given the colloquy between the court, prosecutor and defense counsel, it is clear that the court determined that defendant's very extensive criminal record, including numerous felony convictions, made him an unsuitable candidate for a judicial diversion program, regardless of what an
evaluation might reveal. There is no basis for disturbing that
determination.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 19, 2013

CLERK