People v. Session

Summary

The New York Appellate Division, Fourth Department, unanimously affirmed a judgment convicting Kyle Session, upon his guilty plea, of criminal sale of a controlled substance in the third degree. The court rejected his ineffective-assistance claim based on counsel's failure to seek judicial diversion, concluding that counsel cannot be ineffective for failing to make an application or argument with little or no chance of success.

Holdings

1. The court assumed, without deciding, that defendant's ineffective-assistance contention survived his guilty plea.
2. Defendant was not denied effective assistance of trial counsel because counsel cannot be ineffective for failing to make a motion or argument that has little or no chance of success.

Questions Presented

1. Whether defendant's ineffective-assistance claim based on counsel's failure to seek judicial diversion survived his guilty plea.
2. Whether counsel provided ineffective assistance by failing to file an application for judicial diversion under CPL 216.05.

Disposition

affirmed