PEOPLE v. YOUNG (2020)

Judgments, Supreme Court, New York County (Patricia M. Nuñez, J. at diversion hearing; Gregory Carro, J. at plea and sentencing), rendered September 20, 2017, as amended October 13, 2017 and February 21, 2018, convicting defendant, upon his pleas of guilty under three indictments, of burglary in the third degree (seven counts) and bail jumping in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 31/212 to 7 years, unanimously affirmed.

Defendant was eligible for judicial diversion based on two indictments that charged him with burglary in the third degree, a qualifying offense (see CPL 216.00[1], 410.91[5]; Penal Law § 140.20). A third indictment, which charged him solely with bail jumping in the second degree, did not render him ineligible, because that crime is neither a qualifying nor disqualifying offense (see CPL 216.00[1]; Penal Law § 215.56). The inclusion of a nonqualifying offense in an indictment “will not prevent an otherwise eligible defendant from making an application for judicial diversion” (People v. Smith, 139 A.D.3d 131, 136, 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]). For the reasons set forth in Smith, id. at 134–137, 30 N.Y.S.3d 19, we conclude that a separate indictment that charges only a nonqualifying offense, but was part of the same disposition as one or more other indictments that contain qualifying offenses, does not render an otherwise eligible defendant ineligible for judicial diversion. Thus, the court should not have deemed defendant statutorily ineligible.

Regardless of defendant's eligibility, the record supports the court's alternative holding, in which it denied judicial diversion. The court providently exercised its discretion in determining, without first ordering an alcohol and substance abuse evaluation report, that judicial diversion was not warranted (CPL 216.05[1]). “Such an evaluation is permissive” (People v. O'Keefe, 112 A.D.3d 524, 524, 976 N.Y.S.2d 663 [1st Dept. 2013], lv denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014]; see also People v. Carper, 124 A.D.3d 1319, 997 N.Y.S.2d 579 [4th Dept. 2015], lv denied 25 N.Y.3d 949, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015]; Matter of Carty v. Hall, 92 A.D.3d 1191, 1192, 939 N.Y.S.2d 609 [3d Dept. 2012]). The court concluded that defendant's criminal record, which included numerous felonies, rendered him an unsuitable candidate for diversion, regardless of what an evaluation might reveal, and there is no basis to disturb that determination (see O'Keefe, 112 A.D.3d at 525, 976 N.Y.S.2d 663).

We perceive no basis for reducing the sentence.