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

1276
KA 14-01686
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL LAYOU, DEFENDANT-APPELLANT.


PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, NEW YORK CITY (ROSS E.
WEINGARTEN OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from an amended judgment of the Onondaga County Court
(Joseph E. Fahey, J.), rendered July 14, 2014. The amended 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 amended judgment so appealed from
is unanimously affirmed.

     Memorandum: Defendant appeals from an amended judgment
convicting him, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [12]).
On a prior appeal, we concluded that defendant was deprived of
effective assistance of counsel by the attorney assigned to represent
him at a suppression hearing, inasmuch as counsel, inter alia,
“ ‘never supplied the hearing court with any legal rationale for
granting suppression’ ” (People v Layou, 114 AD3d 1195, 1198, quoting
People v Clermont, 22 NY3d 931, 933). We therefore remitted 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., quoting
Clermont, 22 NY3d at 934).

     Upon remittal, the court reopened the suppression hearing and
heard testimony from four defense witnesses, including defendant, none
of whom had testified at the first suppression hearing. Following the
hearing, both sides submitted memoranda of law in support of their
positions. The court again denied the motion. Defendant now contends
that the court erred in denying his motion to suppress physical
evidence because, among other reasons, the testimony of the arresting
officer was not credible. More specifically, defendant contends that,
contrary to the officer’s testimony at the hearing, defendant’s
vehicle was not illegally parked when the officer made his initial
                                 -2-                          1276
                                                         KA 14-01686

approach, and that the approach was therefore unlawful inasmuch as it
was not “undertaken for an objective, credible reason” (People v
Ocasio, 85 NY2d 982, 984). We reject that contention.

     It is well settled that great deference should be given to the
determination of the suppression court, which had the opportunity to
observe the demeanor of the witnesses and to assess their credibility,
and its factual findings should not be disturbed unless clearly
erroneous (see People v Prochilo, 41 NY2d 759, 761; People v Pitsley,
185 AD2d 645, 645, lv denied 81 NY2d 792). Here, the arresting
officer testified that he approached defendant’s vehicle because it
was parked in a municipal lot directly in front of a “No Parking”
sign. Contrary to defendant’s contention, there is nothing about the
officer’s testimony in that regard that is “unbelievable as a matter
of law, manifestly untrue, physically impossible, contrary to
experience, or self-contradictory” (People v James, 19 AD3d 617, 618,
lv denied 5 NY3d 829). In fact, the officer’s testimony was
corroborated by that of defendant’s former attorney, who testified at
the suppression hearing that, when he went to the parking lot in
question approximately 15 months after defendant’s arrest, he observed
a “No Parking” sign “underneath some snow and ice and other
materials”, with its metal pole having been bent flat to the ground.
Even assuming, arguendo, that the sign was in that condition when the
officer approached defendant’s parked vehicle, we note that, as the
officer testified, no parking was allowed in the lot. Moreover, it is
immaterial whether other people regularly parked illegally in the lot,
as defendant’s remaining witnesses testified. We thus conclude that
the court properly rejected defendant’s contention that the officer
lacked an objective, credible reason to approach the vehicle, and
properly denied his motion to suppress contraband recovered from the
vehicle and defendant’s person.

     Finally, we reject defendant’s remaining contention that the
indictment should be dismissed based on our prior finding that he was
deprived of effective assistance of counsel at the first suppression
hearing.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
