People v Gavrilov (2019 NY Slip Op 08694) People v Gavrilov 2019 NY Slip Op 08694 Decided on December 4, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 4, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. RUTH C. BALKIN JEFFREY A. COHEN ROBERT J. MILLER, JJ. 2017-12192 (Ind. No. 9562/15) [*1]The People of the State of New York, respondent, vAnar Gavrilov, appellant. Paul Skip Laisure, New York, NY (Kendra L. Hutchinson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Caroline R. Donhauser of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joseph Gubbay, J.), rendered August 11, 2017, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant was charged in an indictment with, inter alia, grand larceny in the fourth degree. The Supreme Court, over the People's objection, granted the then 24-year-old defendant's request pursuant to CPL 216.05(1) for a substance abuse evaluation. Thereafter, the defendant moved pursuant to CPL 216.05(4)(b) to participate in a judicial diversion program without being required to enter a plea of guilty. The defendant, a native of Azerbaijan and a lawful permanent resident of the United States, argued that exceptional circumstances existed warranting such relief since the entry of a plea of guilty would likely result in "severe collateral consequences," to wit, deportation (CPL 216.05[4][b]). The court determined that the defendant may participate in the judicial diversion program, however, it denied his request to forego the requirement that he enter a plea of guilty. The defendant pleaded guilty to grand larceny in the fourth degree in exchange for the court's promise that, if he successfully completed the judicial diversion program, the plea would be vacated and the indictment dismissed. However, if the defendant failed to successfully complete the program, he would be sentenced to an indeterminate term of imprisonment of 1½ to 3 years. During the plea proceeding, the defendant was adjudicated a second felony offender after admitting that he had a prior felony conviction in 2012 of grand larceny in the fourth degree and after declining to challenge the constitutionality of that conviction. The defendant also confirmed his understanding that, if he was not a citizen of the United States, his plea of guilty could have adverse immigration consequences. The defendant subsequently violated a condition of his release under the judicial diversion program, and, on August 11, 2017, the court imposed the promised sentence of imprisonment. CPL 216.05(4) provides that "[w]hen an authorized court determines . . . that an eligible defendant should be offered alcohol or substance abuse treatment, or when the parties and the court agree to an eligible defendant's participation ...
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