        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

364
KA 12-00370
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC P. WILLIAMS, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered January 3, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a plea of guilty of attempted criminal possession of a controlled
substance in the third degree (Penal Law §§ 110.00, 220.16 [1]). We
reject defendant’s contention that County Court erred in refusing to
order judicial diversion instead of incarceration. The court
considered the statutory factors pursuant to CPL 216.05 (3) (b) in
making its determination, including whether defendant was eligible for
diversion, whether he had a history of drug abuse, whether such abuse
was a contributing factor to his criminal behavior, whether diversion
could effectively address such abuse, and whether institutional
confinement of defendant was necessary for the protection of the
public. Courts are afforded great deference in making judicial
diversion determinations, and we perceive no abuse of discretion here
(see Matter of Carty v Hall, 92 AD3d 1191, 1192; see generally People
v Secore, 102 AD3d 1059, 1060; People v Dawley, 96 AD3d 1108, 1109, lv
denied 19 NY3d 1025; People v Hombach, 31 Misc 3d 789, 792). To the
extent that defendant’s contention that he was denied effective
assistance of counsel survives his guilty plea (see People v Hawkins,
94 AD3d 1439, 1440-1441, lv denied 19 NY3d 974), we conclude that his
contention lacks merit (see generally People v Ford, 86 NY2d 397,
404). We note that, although defense counsel’s request that defendant
be evaluated pursuant to CPL 216.05 was improperly made after
defendant entered his plea of guilty, the court ignored that
procedural error and reached the judicial diversion issue on the
merits. We further conclude that the sentence is not unduly harsh or
                            -2-                 364
                                           KA 12-00370

severe.




Entered:   April 26, 2013         Frances E. Cafarell
                                  Clerk of the Court
