People v. O'Keefe

112 A.D.3d 524, 976 N.Y.S.2d 663

Opinion

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 2 to 4 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 CEL 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. Concur — Tom, J.E, Andrias, Saxe, DeGrasse and Richter, JJ.