People v Carper

People v Carper 2015 NY Slip Op 00064 Decided on January 2, 2015 Appellate Division, Fourth 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 January 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.
1266 KA 13-00802

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

VINCENT D. CARPER, DEFENDANT-APPELLANT.

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, of criminal possession of a controlled substance in the third degree.

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, 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 err in 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 AD3d 1428, 1428, lv denied 21 NY3d 1021), and we perceive no abuse of discretion here. Also contrary to defendant's contention, the court did not err in failing 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, 112 AD3d 524, 524, lv denied 23 NY3d 1023), and the determination whether to order such an evaluation "clearly lies within the discretion of the court" (Matter of Carty v Hall, 92 AD3d 1191, 1192). Here, we perceive no abuse of discretion. Furthermore, "the court was not required to make explicit findings as to why it summarily denied" defendant's application (O'Keefe, 112 AD3d at 525). We note in 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 AD3d 1383, 1384).

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court