People v. Clarke

• Decision Date: 16 November 2017
• Citation: 155 A.D.3d 1242,65 N.Y.S.3d 578
• Parties: The PEOPLE of the State of New York, Respondent, v. David A. CLARKE, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1242

65 N.Y.S.3d 578

The PEOPLE of the State of New York, Respondent,

v.David A. CLARKE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 16, 2017.

Jay Wilber, Public Defender, Binghamton (Michele A. Coleman of counsel), for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.

Before: PETERS, P.J., GARRY, MULVEY, AARONS and PRITZKER, JJ.

PETERS, P.J.

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 third degree (five counts), criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. Prior to entering a guilty plea to 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 the understanding that his sentence would be capped at six years of imprisonment followed by three years of postrelease supervision. County Court (Cawley Jr., J.) thereafter sentenced defendant as a second felony offender to five years in prison followed by three years of postrelease supervision upon 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 for judicial diversion and, further, that the sentence imposed was harsh and excessive.

Preliminarily, to the extent that defendant suggests that the agency 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 for failing to call the evaluator to testify at the hearing, we need note only that defendant failed to raise any objections in this regard at such hearing and, therefore, has failed to preserve these issues for our review (see CPL 470.05[2] ). Turning to the merits, "under the program created by CPL article 216, whether an eligible defendant will be offered judicial diversion pursuant to that article remains within the trial court's discretion, and [a] defendant is not automatically entitled to judicial diversion" ( People v. Meddaugh, 150 A.D.3d 1545, 1547, 55 N.Y.S.3d 777 [2017] ; see CPL 216.05[4] ; People v. Driscoll, 147 A.D.3d 1157, 1159, 48 N.Y.S.3d 522 [2017], lv. denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ; People v. Powell, 110 A.D.3d 1383, 1384, 973 N.Y.S.2d 870 [2013] ; People v. Buswell, 88 A.D.3d 1164, 1165, 931 N.Y.S.2d 543 [2011] ). Pursuant to the statute, CPL 216.05 required County Court (Pelella, J.)—upon completion of the underlying hearing—to consider and make findings of fact as to whether defendant was eligible for participation in the judicial diversion program, whether he had a history of alcohol or substance abuse or dependance, whether such abuse or dependence was a contributing factor to his criminal behavior, whether his participation in the program could effectively address such abuse or dependence and, finally, whether confinement was or might be necessary for the protection of the public (see CPL 216.05 [3][b][i]-[v] ; People v. Cora, 135 A.D.3d 987, 989, 22 N.Y.S.3d 655 [2016] ).

Although County Court deemed defendant to be eligible for participation in the judicial diversion program and concluded that defendant indeed ...