THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RODNEY BANKS DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). The conviction arose after police officers discovered cocaine while searching defendant's residence pursuant to a search warrant. We affirm.

We reject defendant's contention that County Court (Ottaviano, J.) erred in denying that part of his omnibus motion seeking to suppress the physical evidence obtained after the execution of the search warrant without conducting a hearing on his challenges to the legality of the search warrant. A motion to suppress evidence may be summarily denied if the motion papers do not allege a ground constituting a legal basis for the motion or the sworn allegations of fact do not as a matter of law support the ground alleged (see CPL 710.60 [3] [a], [b]; People v Collier, 238 AD3d 1530, 1531 [4th Dept 2025], lv denied 44 NY3d 981 [2025]). Here, with respect to suppression, defendant's omnibus motion papers contained only unsworn, conclusory factual assertions of defense counsel and failed to “raise a factual dispute on a material point which must be resolved before the court [could] decide the legal issue[s]” (People v Smith, 207 AD3d 1066, 1067 [4th Dept 2022], lv denied 39 NY3d 942 [2022] [internal quotation marks omitted]; see People v Forbes, 244 AD3d 1819, 1819-1820 [4th Dept 2025], lv denied 45 NY3d 970 [2026]). Thus, we conclude that the court did not err in summarily denying that part of the omnibus motion seeking to suppress physical evidence.

Contrary to defendant's further contention, the court did not err in denying his application for judicial diversion pursuant to CPL 216.05. “Courts are afforded great deference in making judicial diversion determinations” (People v Williams, 105 AD3d 1428, 1428 [4th Dept 2013], lv denied 21 NY3d 1021 [2013]). Here, the court did not abuse its discretion in determining that defendant was not an appropriate candidate for the judicial diversion program because of the lack of any connection between his criminal behavior and his substance abuse issues, as well as the threat that defendant would pose to other program participants (see People v Eady, 179 AD3d 1452, 1453 [4th Dept 2020], lv denied 35 NY3d 969 [2020]).

We reject defendant's contention that the sentence imposed by Supreme Court (Giacobbe, A.J.) is unduly harsh and severe.

Finally, we have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court