People v Session
2026 NY Slip Op 02749 [249 AD3d 1497]
May 1, 2026
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 8, 2026
The People of the State of New York, Respondent,
v
Kyle Session, Appellant.
May 1, 2026
APPEARANCES OF COUNSEL
David P. Elkovitch, Auburn, for defendant-appellant.
Brittany Grome Antonacci, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered January 26, 2023. The judgment convicted defendant, upon a plea of guilty, of criminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), defendant contends that he was denied effective assistance of counsel based on his attorney's failure to file an application requesting judicial diversion to a substance abuse treatment program pursuant to CPL 216.05. Even assuming, arguendo, that defendant's contention survives his guilty plea (see People v Clark, 191 AD3d 1485, 1486 [4th Dept 2021], lv denied 37 NY3d 954 [2021]; People v Glowacki, 159 AD3d 1585, 1586 [4th Dept 2018], lv denied 31 NY3d 1117 [2018]), we reject that contention inasmuch as "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to 'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005]). Present—Lindley, J.P., Bannister, Greenwood, Nowak and Hannah, JJ.