        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1309
KA 09-00746
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL J. LAYOU, DEFENDANT-APPELLANT.


MICHAEL J. LAYOU, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered March 6, 2009. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by remitting the matter to Onondaga
County Court for further proceedings on the suppression application
and as modified the judgment is affirmed in accordance with the
following Memorandum: On appeal 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 [12]), defendant contends that
he did not receive effective assistance of counsel from the attorney
assigned to represent him at his suppression hearing. We agree.
While defendant was alone in his motor vehicle in the parking lot of a
government building during the early morning hours of December 8,
2007, he was approached by a police officer who observed a spark of
fire, as if from a cigarette, from inside the vehicle. With the aid
of a flashlight, the officer observed a knife on the floor in the back
seat of defendant’s vehicle. The officer also observed, at
defendant’s feet, a glass pipe and small clear bag containing a white
chunky substance that turned out to be cocaine. After ordering
defendant out of the vehicle and handcuffing him, the officer
recovered the knife and discovered, upon closer inspection, that it
was an illegal switchblade. In response to questioning from the
officer, defendant made an incriminating statement regarding the
knife. At the police station, the police found a half ounce of
cocaine and some marihuana in defendant’s underwear. The grand jury
indicted defendant on charges of criminal possession of a weapon in
the third degree and criminal possession of a controlled substance in
the third degree.

     Although defendant’s assigned attorney filed an omnibus motion on
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                                                         KA 09-00746

defendant’s behalf, he did not move to suppress the knife or the
cocaine, nor did he request a Huntley hearing with respect to
defendant’s incriminating statement made to the arresting officer.
Defendant filed a pro se motion, however, seeking suppression of all
evidence obtained by the police as a result of what he claimed was an
unlawful search and seizure. More specifically, defendant asserted
that he was “doing nothing illegal” when approached by the officer,
who had no legal basis for searching his vehicle.

     At the next court appearance, County Court engaged in a colloquy
with defendant regarding whether he wished to proceed pro se.
Defendant stated, inter alia, that he “didn’t mind” having defense
counsel represent him but that he had “never spoken” to defense
counsel. Defense counsel, in turn, stated that he was “not opposed”
to defendant proceeding pro se. The court did not relieve defense
counsel of the assignment and granted defendant’s pro se request for a
Huntley/Mapp hearing. The arresting officer was the only witness to
testify at the suppression hearing. Although defense counsel cross-
examined the officer, he made no argument in support of suppression.
The court later issued a written decision suppressing the statement
defendant made to the officer regarding the knife but denying
suppression of the knife itself and the drugs. According to the
court, the officer was justified in approaching defendant’s vehicle
because it was located in a “no parking area,” and the officer
observed the knife and cocaine in plain view, which gave rise to
probable cause.

     For reasons not set forth in the record, the court thereafter
relieved defense counsel of the assignment and appointed new counsel
for defendant. Defendant eventually pleaded guilty to the felony drug
offense in return for a sentence promise of a six-year determinate
term of imprisonment plus five years of postrelease supervision, and
the weapons count was dismissed in satisfaction of the plea. Prior to
sentencing, however, defendant moved to withdraw his plea. In support
of the motion, defense counsel submitted an affirmation in which he
asserted that, based on his own investigation, he determined that the
only “No Parking” sign in the parking lot where defendant was arrested
had been bent to the ground “some time ago” and thus could not be
seen. Defense counsel also submitted an affidavit from a witness who
observed defendant being arrested and stated that there were no “No
Parking” signs in the lot at the time. The court denied defendant’s
motion and imposed the promised sentence. This appeal ensued.

     The facts of this case are similar to those in People v Clermont
(22 NY3d 931), where the Court of Appeals held that the defendant was
deprived of effective assistance of counsel at his suppression
hearing. The Court reasoned that defense counsel’s failure to marshal
the facts adduced at the hearing, “coupled with his failure to make
appropriate argument in his motion papers or to submit a post-hearing
memorandum, meant that the defense never supplied the hearing court
with any legal rationale for granting suppression” (id. at 933). The
Court went on to note that, after the motion court issued a decision
that described the facts in a manner inconsistent with the testimony
at the hearing, defense counsel did not move to reargue the motion or
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                                                         KA 09-00746

otherwise correct the court’s apparent factual error. According to
the Court, defense counsel’s conduct could not be explained as
“strategic” and, therefore, “defendant was not afforded meaningful
representation at a critical stage of th[e] prosecution” (id. at 934).

     Notably, the Court in Clermont rejected the People’s contention
that “the conviction should be affirmed because there is record
support for the order denying suppression and defendant has failed to
establish prejudice” (id.), explaining that “it is not necessary for
us to discuss the merits of the suppression issue to decide the
ineffective assistance claim, other than to note that, on appeal, the
parties have presented substantial arguments for and against
suppression and the issue is close under our complex DeBour
jurisprudence.” The Court “conditionally” modified the judgment by
remitting the matter to Supreme Court “for further proceedings on the
suppression application, to include legal argument by counsel for both
parties and, if defendant so elects, reopening of the hearing” (id.).

     Here, as in Clermont, suppression was the only viable defense
strategy. Nevertheless, defense counsel inexplicably failed to move
for suppression of the cocaine or the knife seized by the police from
defendant’s vehicle. Defense counsel also failed to move for
suppression of defendant’s incriminating statement to the officer
about the knife, which the court thereafter suppressed in response to
defendant’s pro se motion. Like the attorney in Clermont, defense
counsel did not marshal the facts for the court, made no legal
argument regarding suppression, and submitted no post-hearing
memorandum. In short, as in Clermont, defense counsel “never supplied
the hearing court with any legal rationale for granting suppression”
(id. at 933).

     Although the attorney in Clermont failed to move for reargument
after the court misstated the facts in its suppression decision, which
did not occur here, defense counsel in this case did not even move for
suppression, as did counsel in Clermont. Moreover, defense counsel
represented defendant for approximately six months and did not once
meet with him.

     Under the circumstances, we conclude that defendant did not
receive effective assistance of counsel from the attorney who
represented him at the suppression hearing. We have reviewed
defendant’s remaining contentions and conclude that they are either
moot or lack merit. We therefore, as in Clermont, conditionally
modify the judgment by remitting the matter to County Court for
“further proceedings on the suppression application, to include legal
argument by counsel for both parties and, if defendant so elects,
reopening of the hearing” (id. at 934). In the event that defendant
prevails on the suppression application, the judgment is reversed, the
plea is vacated and the indictment is dismissed and, if the People
prevail, then the judgment “should be amended to reflect that result”
(id. at 932).
Entered: February 7, 2014                       Frances E. Cafarell
                                                Clerk of the Court
