Calendar Date: January 17, 2017
M. Campbell, Syracuse, for appellant.
A. Wetmore, District Attorney, Elmira (John R. Thweatt of
counsel), for respondent.
Before: Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey,
MEMORANDUM AND ORDER
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.
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 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
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 A.D.3d 1535, 1536
, lv denied 29 N.Y.3d 975');">29 N.Y.3d 975 ; People v
Rich, 140 A.D.3d 1407, 1407 , lv denied
28 N.Y.3d 936');">28 N.Y.3d 936 ). 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
A.D.3d 1261, 1264  [internal quotation marks and
citation omitted], lvs denied 28 N.Y.3d 932, 934
). 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
. 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 N.Y.3d 929, 931 ), 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 Penal Law §§ 70.70  [b];  [b]
[i]; 220.39 ), defendant benefitted from a favorable plea
deal. Further, judicial diversion to drug treatment is
discretionary (see People v Powell, 110 A.D.3d 1383,
1384 ) and, even assuming that he is an
"[e]ligible defendant" (CPL 216.00 ), 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  [b] [v]; ; People v Pittman, 140
A.D.3d 989, 989 ; People v Carper, 124 A.D.3d
1319, 1320 , lv denied 25 N.Y.3d 949');">25 N.Y.3d 949 ;
compare People v Cora, 135 A.D.3d 987, 989 ).
Accordingly, were this claim properly before us, we would
find that defendant received meaningful representation.
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
A.D.3d 1073, 1074 ).
Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur.
that the judgment is affirmed.
 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 ...