Opinion
1266 KA 13-00802.
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Vincent D. CARPER, Defendant–Appellant.
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.
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.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.
Opinion
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 A.D.3d 1428, 1428, 963 N.Y.S.2d 899, lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 ), 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 A.D.3d 524, 524, 976 N.Y.S.2d 663, lv. denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806 ), and the determination whether to order such an evaluation “clearly lies within the discretion of the court” (Matter of Carty v. Hall, 92 A.D.3d 1191, 1192, 939 N.Y.S.2d 609 ). 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 A.D.3d at 525, 976 N.Y.S.2d 663 ). 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 A.D.3d 1383, 1384, 973 N.Y.S.2d 870 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.