Opinion
2012-02-23
In the Matter of Damion CARTY, Petitioner, v. John S. HALL Jr., as County Judge of Warren County, et al., Respondents.
John P.M. Wappett, Public Defender, Lake George, for petitioner.
Before: LAHTINEN, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.
GARRY, J.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to, among other things, compel respondent County Judge of Warren County to order an alcohol and substance abuse evaluation.
Petitioner, a permanent resident of the United States, was charged in April 2011 with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree arising from the alleged sale of hydrocodone. At a pretrial hearing, petitioner requested that respondent County Judge of Warren County (hereinafter respondent) consider his application for the judicial diversion program and order him to undergo an alcohol and substance abuse evaluation, in accord with the provisions of CPL article 216. Respondent denied the request, and petitioner thereafter commenced this CPLR article 78 proceeding seeking, among other things, an order directing respondent to grant the request and direct an alcohol and substance abuse evaluation.
It is undisputed that petitioner is an “eligible defendant” as statutorily defined ( see CPL 216.00[1] ), who may be allowed to participate in the judicial diversion program ( see CPL 216.05). Petitioner argues that respondent erred in failing to order that the evaluation be performed prior to denying him entry into the program. We disagree. The statute provides that “the court at the request of the eligible defendant, may order an alcohol and substance abuse evaluation” (CPL 216.05[1] [emphasis added] ). Thus, this initial determination clearly lies within the discretion of the court, as does the determination following review of such report ( see CPL 216.05[4]; People v. Buswell, 88 A.D.3d 1164, 1165, 931 N.Y.S.2d 543 [2011] ). Accordingly, the extraordinary remedies of prohibition and mandamus are not available ( see People v. Williams, 14 N.Y.3d 198, 221, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010], cert. denied ––– U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010]; Matter of Johnson v. Corbitt, 87 A.D.3d 1214, 1215, 929 N.Y.S.2d 783 [2011], lv. denied 18 N.Y.3d 802, 2011 WL 6350552 [2011] ), nor is petitioner entitled to seek a declaratory judgment in this pending criminal action ( see Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614, 633, 904 N.Y.S.2d 312, 930 N.E.2d 233 [2010], cert. denied ––– U.S. ––––, 131 S.Ct. 353, 178 L.Ed.2d 251 [2010] ).
Finally, contrary to petitioner's assertions, the record reveals that respondent provided a full and fair hearing on the issue, and we find no violation of due process or equal protection. Although petitioner is faced with the inherent and grave risk of deportation if he is convicted, his participation in a discretionary program is not mandated so as to avoid this harsh collateral result.
ADJUDGED that the petition is dismissed, without costs.