                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   January 7, 2016                 107237
                                                       106939
________________________________

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

MARTIN CORA,
                    Appellant.
________________________________


Calendar Date:   November 16, 2015

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Clark, JJ.

                             __________


      Proyect & Hart, Parksville (Joel M. Proyect of counsel),
for appellant.

      James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.

                             __________


Clark, J.

      Appeals (1) from a judgment of the County Court of Sullivan
County (McGuire, J.), rendered May 21, 2014, convicting defendant
upon his plea of guilty of the crime of criminal possession of
marihuana in the second degree and the traffic infraction of
operating a motor vehicle without being restrained by a safety
belt, and (2) by permission, from an order of said court, entered
July 22, 2014, which denied defendant's motion pursuant to
CPL 440.10 to vacate the judgment of conviction, without a
hearing.

      Defendant was charged with various crimes and traffic
infractions after the car he was driving was stopped by the State
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                                                 106939

Police and four pounds of marihuana were discovered. Following
the denial of his application requesting judicial diversion to a
substance abuse treatment program pursuant to CPL 216.05,
defendant pleaded guilty to criminal possession of marihuana in
the second degree and operating a motor vehicle without being
restrained by a safety belt. He was thereafter sentenced to five
years of probation, the first six months to be served in jail.
Defendant's subsequent motion to vacate the judgment pursuant to
CPL 440.10 on the ground that County Court did not have the
authority to adjudicate his judicial diversion application was
denied without a hearing. Defendant appeals from the judgment of
conviction and, by permission, from the denial of his CPL article
440 motion. The portion of the sentence that imposed six months
in jail was stayed pending these appeals.

      With regard to both his direct appeal and appeal from his
CPL article 440 motion, defendant argues that County Court did
not have jurisdiction to adjudicate his application for judicial
diversion because it was not the court designated by the Third
Judicial District as a drug treatment court in Sullivan County.
We disagree. Regarding assignment of such matters, the Chief
Administrator of the Courts shall "ensure that cases eligible for
judicial diversion pursuant to [CPL article 216] shall be
assigned to court parts in the manner provided by the [C]hief
[A]dministrator and that, to the extent practicable, such cases
are presided over by judges who, by virtue of the structure,
caseload and resources of the parts and the judges' training, are
in the best position to provide effective supervision over such
cases, such as the drug treatment courts" (Judiciary Law § 212
[2] [r]; see 22 NYCRR 143.2).

      Here, defendant's case was initially assigned to Judge
LaBuda, who is the sole judge designated by the Chief
Administrator to preside over the drug treatment court in
Sullivan County. Prior to defendant's request for judicial
diversion, however, Judge LaBuda recused himself and the case was
reassigned to Judge McGuire, who, as sitting County Judge, has
jurisdiction of felony cases (see CPL 10.10 [2] [b]; 10.20 [1]
[a]). Under these circumstances, and in light of the statutory
language that judicial diversion applications are to be assigned
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                                                 106939

to drug courts "to the extent practicable" (Judiciary Law § 212
[2] [r]), we find no error in the assignment of defendant's case,
including his application for judicial diversion, to another
superior court after the recusal of the judge designated to
preside over the drug treatment court in that county.

      Turning to the merits, however, we agree with defendant
that County Court erred in denying defendant's judicial diversion
application. Upon the completion of a hearing on the issue of
whether a defendant should be offered judicial diversion, the
court "shall consider and make findings of fact with respect to
whether: (i) the defendant is an eligible defendant as defined in
[CPL 216.00 (1)]; (ii) the defendant has a history of alcohol or
substance abuse or dependence; (iii) such alcohol or substance
abuse or dependence is a contributing factor to the defendant's
criminal behavior; (iv) the defendant's participation in judicial
diversion could effectively address such abuse or dependence; and
(v) institutional confinement of the defendant is or may not be
necessary for the protection of the public" (CPL 216.05 [3] [b]
[emphasis added]).

      It is undisputed that defendant is an eligible defendant as
defined in CPL 216.00 (1) and that his incarceration was not
necessary to protect the public. Contrary to the determination
of County Court, however, we also find that the uncontroverted
evidence in the record amply supports the conclusions that
defendant has a history of substance abuse and that such
substance abuse and dependence were contributing factors to his
criminal behavior. Specifically, among other things, defendant
described that his progressively escalating marihuana use, which
began socially at age 14, advanced to daily use over the ensuing
years and culminated in defendant becoming a mule, transporting
larger quantities of marihuana across state lines for other
individuals in order to receive compensation in the form of
marihuana. Defendant attested to resorting to this conduct when
supporting his habit became too expensive, despite his gainful
employment. We also note the expert testimony of a substance
abuse counselor who opined that, based upon his history,
defendant was an addict who was cannabis dependent.
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                                                   106939

      Inasmuch as "[t]he statute does not require that a
defendant's . . . substance abuse or dependence be the exclusive
or primary cause of the defendant's criminal behavior" (People v
DeYoung, 95 AD3d 71, 79 [2012]), but instead only requires it be
a contributing factor, we find no basis for County Court's
determination that the instant arrest – i.e., defendant's only
involvement with the criminal justice system – was not
contributed to by defendant's marihuana use. We also cannot
agree with the court's classification of defendant as a mere
recreational drug user who would not benefit from a treatment
program. Thus, we find that County Court abused its discretion
and reverse (see People v DeYoung, 95 AD3d at 79-80; compare
People v Aitken 101 AD3d 1383 [2012], lv denied 21 NY3d 1040
[2013]).

     McCarthy, J.P., Egan Jr., Rose and Lynch, JJ., concur.



      ORDERED that the judgment is reversed, on the law,
defendant's application to participate in judicial diversion
pursuant to CPL article 216 granted, and matter remitted to the
County Court of Sullivan County for further proceedings in
accordance with CPL article 216.

     ORDERED that the order is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
