The opinion of the court was delivered by: Garry, J.
Calendar Date: January 12, 2012
Before: Lahtinen, J.P., Spain, Stein, Garry and Egan Jr., JJ.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] ) to, among other things, compel respondent County Judge of Warren County to order an alcohol and substance abuse evaluation.
Petitioner, a permanent resident of the United States, was charged in April 2011 with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree arising from the alleged sale of hydrocodone. At a pretrial hearing, petitioner requested that respondent County Judge of Warren County (hereinafter respondent) consider his application for the judicial diversion program and order him to undergo an alcohol and substance abuse evaluation, in accord with the provisions of CPL article 216. Respondent denied the request, and petitioner thereafter commenced this CPLR article 78 proceeding seeking, among other things, an order directing respondent to grant the request and direct an alcohol and substance abuse evaluation.
It is undisputed that petitioner is an "eligible defendant" as statutorily defined (see CPL 216.00 ), who may be allowed to participate in the judicial diversion program (see CPL 216.05). Petitioner argues that respondent erred in failing to order that the evaluation be performed prior to denying him entry into the program. We disagree. The statute provides that "the court at the request of the eligible defendant, may order an alcohol and substance abuse evaluation" (CPL 216.05  [emphasis added]). Thus, this initial determination clearly lies within the discretion of the court, as does the determination following review of such report (see CPL 216.05 ; People v Buswell, 88 AD3d 1164, 1165 ). Accordingly, the extraordinary remedies of prohibition and mandamus are not available (see People v Williams, 14 NY3d 198, 221 , cert denied ___ US ___, 131 S Ct 125 ; Matter of Johnson v Corbitt, 87 AD3d 1214, 1215 , lv denied ___ NY3d ___ [Dec. 20, 2011]), nor is petitioner entitled to seek a declaratory judgment in this pending criminal action (see Cayuga Indian Nation of N.Y. v Gould, 14 NY3d 614, 633 , cert denied ___ US ___, 131 S Ct 353 ).
Finally, contrary to petitioner's assertions, the record reveals that respondent provided a full and fair hearing on the issue, and we find no violation of due process or equal protection. Although petitioner is faced with the inherent and grave risk of deportation if he is convicted, his participation in a discretionary program is not mandated so as to avoid this harsh collateral result.
Lahtinen, J.P., Spain, Stein and Egan Jr., JJ., concur.
ADJUDGED that the petition is dismissed, without costs.
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