Opinion
2013-12-19
The PEOPLE of the State of New York, Respondent, v. John O'KEEFE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Allison Haupt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Allison Haupt of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
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 two to four years, unanimously affirmed.
Although we conclude that the issue was not foreclosed by defendant's guilty plea ( see People v. DeYoung, 95 A.D.3d 71, 940 N.Y.S.2d 306 [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 CPL 216.05. Such an evaluation is permissive ( Matter of Carty v. Hall, 92 A.D.3d 1191, 939 N.Y.S.2d 609 [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. TOM, J.P., ANDRIAS, SAXE, DeGRASSE, RICHTER, JJ., concur.