PEOPLE v. KIRK (2025)

Judgment, Supreme Court, New York County (Guy H. Mitchell, J. at judicial diversion hearing;  Steven M. Statsinger, J. at plea and sentencing), rendered September 18, 2019, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in or near school grounds, and sentencing him to 3 years’ probation and 10 days of community service, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant failed to preserve his arguments that the court did not state its findings as to the factors relevant to judicial diversion under CPL 216.05(3)(b), and that the court employed an improper standard in assessing whether his substance use contributed to his criminal behavior (CPL 216.05[3][b][iii]), and we decline to review them in the interest of justice (see People v. Foreman, 223 A.D.3d 418, 200 N.Y.S.3d 377 [1st Dept. 2024], lv denied 41 N.Y.3d 965, 208 N.Y.S.3d 548, 232 N.E.3d 226 [2024]).  As an alternative holding, we reject those arguments on the merits, and find that the court providently exercised its discretion in denying defendant's application to participate in the judicial diversion program (see generally People v. Smith, 139 A.D.3d 131, 134, 30 N.Y.S.3d 19 [1st Dept. 2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 382, 68 N.E.3d 111 [2016];  see also People v. Ratliff, 217 A.D.3d 585, 585, 192 N.Y.S.3d 39 [1st Dept. 2023], lv denied 40 N.Y.3d 952, 195 N.Y.S.3d 665, 217 N.E.3d 685 [2023]).  The court's determination was supported by the conclusion of a case manager from the judicial diversion program that defendant would not be a suitable candidate for the program (see People v. Foreman, 223 A.D.3d at 418, 200 N.Y.S.3d 377), and the court's finding that defendant's marijuana use was not a contributing factor to his drug-selling activity (see People v. Ratliff, 217 A.D.3d at 585, 192 N.Y.S.3d 39;  see also CPL 216.05[3][b]).

In any event, defendant requests dismissal of the indictment rather than vacatur of the judicial diversion determination, and he expressly requests this Court to affirm the conviction if it does not grant a dismissal.  Since we do not find that dismissal would be appropriate under the circumstances of this case, we affirm on this basis as well (see e.g. People v. Teron, 139 A.D.3d 450, 29 N.Y.S.3d 175 [1st Dept. 2016]).

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People consent to this relief.