                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   107548
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RASHAD DRISCOLL,
                    Appellant.
________________________________


Calendar Date:   January 17, 2017

Before:   Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey, JJ.

                             __________


     Linda M. Campbell, Syracuse, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (John R.
Thweatt of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered March 19, 2015, convicting
defendant upon his plea of guilty of the crimes of criminal sale
of a controlled substance in the third degree and criminal
possession of a controlled substance in the fourth degree.

      Defendant was charged in a five-count indictment with
criminal sale of a controlled substance in the third degree
(three counts) and other drug-related crimes stemming from the
sale of cocaine on three occasions. He was subsequently charged
in a three-count indictment with criminal sale of a controlled
substance in the third degree and other crimes that followed a
separate sale of cocaine and his conduct in resisting arrest.
County Court consolidated the indictments and denied defendant's
                               -2-                107548

pretrial motions to suppress evidence. Defendant thereafter
pleaded guilty to criminal sale of a controlled substance in the
third degree in satisfaction of the first indictment and, under
count two of the second indictment, to criminal possession of a
controlled substance in the fourth degree, in satisfaction of
that indictment, and admitted his predicate drug-related felony
conviction. Consistent with the plea agreement, the court
imposed concurrent prison sentences of six years with three years
of postrelease supervision on each conviction. Defendant
appeals.

      We affirm. Defendant contends that he was deprived of the
effective assistance of counsel in that counsel failed to file an
application requesting judicial diversion to a substance abuse
treatment program pursuant to CPL 216.05. This claim is
unpreserved for our review, as defendant failed to raise it
before County Court and the record does not reflect that he moved
to withdraw his plea on this ground (see People v Williams, 140
AD3d 1535, 1536 [2016], lv denied 29 NY3d 975 [2016]; People v
Rich, 140 AD3d 1407, 1407 [2016], lv denied 28 NY3d 936 [2016]).
In any event, "in the context of a guilty plea, a defendant has
been afforded meaningful representation when he or she receives
an advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel" (People v Khan, 139 AD3d 1261,
1264 [2016] [internal quotation marks and citation omitted], lvs
denied 28 NY3d 932, 934 [2016]). Here, defendant's assigned
counsel opposed consolidation of the indictments, pursued
discovery, made appropriate pretrial motions and competently
represented him during the pretrial hearings and secured a
favorable plea deal. Defendant then retained new counsel, who
reviewed the case history and represented him at the time of the
plea.1 Given that defendant could have received consecutive
sentences on each of the four charged drug sales (see Penal Law §
70.25; People v Brown, 8 NY3d 929, 931 [2007]), and that the
maximum second felony drug offender sentence for the top count to
which he pleaded guilty, a class B felony, was 12 years (see


     1
        When defendant expressed that he was not happy with the
plea offer, which had remained open for over six months, the
People made clear that the offer would not change.
                              -3-                  107548

Penal Law §§ 70.70 [1] [b]; [3] [b] [i]; 220.39 [1]), defendant
benefitted from a favorable plea deal. Further, judicial
diversion to drug treatment is discretionary (see People v
Powell, 110 AD3d 1383, 1384 [2013]) and, even assuming that he is
an "[e]ligible defendant" (CPL 216.00 [1]), the record does not
reflect any basis upon which to believe that the court would have
deemed it appropriate in view of defendant's extensive criminal
history (see CPL 216.05 [3] [b] [v]; [4]; People v Pittman, 140
AD3d 989, 989 [2016]; People v Carper, 124 AD3d 1319, 1320
[2015], lv denied 25 NY3d 949 [2015]; compare People v Cora, 135
AD3d 987, 989 [2016]). Accordingly, were this claim properly
before us, we would find that defendant received meaningful
representation.

      Finally, we find no abuse of discretion or extraordinary
circumstances warranting a reduction of the agreed-upon sentence
in the interest of justice (see People v Woodruff, 136 AD3d 1073,
1074 [2016]).

     Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
