Opinion
280 KA 20-01480
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Drahcir PARSON, Defendant-Appellant.
HUNT LAW OFFICE PLLC, SYRACUSE (MARSHA A. HUNT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
HUNT LAW OFFICE PLLC, SYRACUSE (MARSHA A. HUNT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
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, inter alia, three counts of grand larceny in the third degree ( Penal Law § 155.35 [1] ). Contrary to defendant's contention, County Court did not err in failing to order an alcohol and substance abuse evaluation before denying his application for judicial diversion pursuant to CPL 216.05. "According to the plain language of CPL 216.05 (1), ‘[s]uch an evaluation is permissive’ ..., and the determination whether to order such an evaluation ‘clearly lies within the discretion of the court’ " ( People v. Carper , 124 A.D.3d 1319, 1319-1320, 997 N.Y.S.2d 579 [4th Dept. 2015], lv denied 25 N.Y.3d 949, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ). Here, we perceive no abuse of discretion. Moreover, we conclude that the court did not err in denying defendant's application. "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 [4th Dept. 2013], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ), and here the determination 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 [3d Dept. 2013] ; see Carper , 124 A.D.3d at 1320, 997 N.Y.S.2d 579 ).