PEOPLE v. JOHNSON (2025)

Judgment, Supreme Court, New York County (Ann E. Scherzer, J., at plea;  Guy Mitchell, J., at diversion hearing;  Ellen Biben, J., at sentencing), rendered May 30, 2019, convicting defendant of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.

Defendant's arguments regarding the determination to deny his application for judicial diversion are unpreserved (see People v. Kirk, 234 A.D.3d 452, 452–453, 223 N.Y.S.3d 97 [1st Dept. 2025], lv denied 43 N.Y.3d 945, 231 N.Y.S.3d 422, 257 N.E.3d 117 [2025]), and we decline to review them in the interest of justice.  As an alternative holding, we find that the court did not violate a promise to grant participation in diversion in exchange for defendant's guilty plea.  The record is clear that the court promised defendant only an opportunity to be screened for diversion, not that he would be sentenced to diversion following screening.  Supreme Court acted well within its discretion in denying diversion, given defendant's extensive criminal history, his disruptive conduct throughout the proceedings, the absence of any showing of likelihood of success in a drug program, and prior failed efforts at diversion (see People v. Young, 184 A.D.3d 443, 444, 126 N.Y.S.3d 450 [1st Dept. 2020], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 392, 152 N.E.3d 1193 [2020]).