| People v Layou |
| 2014 NY Slip Op 00831 [114 AD3d 1195] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael J. Layou, Appellant. |
—[*1] 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, ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by remitting the matter to Onondaga County Court for further proceedings on thesuppression application and as modified the judgment is affirmed in accordance with thefollowing memorandum: On appeal from a judgment convicting him, upon his plea ofguilty, 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 ofcounsel 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 governmentbuilding during the early morning hours of December 8, 2007, he was approached by apolice 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 ofdefendant's vehicle. The officer also observed, at defendant's feet, a glass pipe and smallclear bag containing a white chunky substance that turned out to be cocaine. Afterordering defendant out of the vehicle and handcuffing him, the officer recovered theknife and discovered, upon closer inspection, that it was an illegal switchblade. Inresponse to questioning from the officer, defendant made an incriminating statementregarding the knife. At the police station, the police found a half ounce of cocaine andsome marihuana in defendant's underwear. The grand jury indicted defendant on chargesof criminal possession of a weapon in the third degree and criminal possession of acontrolled substance in the third degree.
Although defendant's assigned attorney filed an omnibus motion on defendant'sbehalf, he did not move to suppress the knife or the cocaine, nor did he request aHuntley hearing with respect to defendant's incriminating statement made to thearresting officer. Defendant filed a pro se motion, however, seeking suppression of allevidence obtained by the police as a result of what he claimed was an unlawful searchand 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[*2]regarding whether he wished to proceed pro se.Defendant stated, inter alia, that he "didn't mind" having defense counsel represent himbut that he had "never spoken" to defense counsel. Defense counsel, in turn, stated thathe was "not opposed" to defendant proceeding pro se. The court did not relieve defensecounsel of the assignment and granted defendant's pro se request for aHuntley/Mapp hearing. The arresting officer was the only witness to testify at thesuppression hearing. Although defense counsel cross-examined the officer, he made noargument in support of suppression. The court later issued a written decision suppressingthe statement defendant made to the officer regarding the knife but denying suppressionof the knife itself and the drugs. According to the court, the officer was justified inapproaching defendant's vehicle because it was located in a "no parking area," and theofficer 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 counselof the assignment and appointed new counsel for defendant. Defendant eventuallypleaded guilty to the felony drug offense in return for a sentence promise of a six-yeardeterminate term of imprisonment plus five years of postrelease supervision, and theweapons count was dismissed in satisfaction of the plea. Prior to sentencing, however,defendant moved to withdraw his plea. In support of the motion, defense counselsubmitted an affirmation in which he asserted that, based on his own investigation, hedetermined that the only "No Parking" sign in the parking lot where defendant wasarrested 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 defendantbeing arrested and stated that there were no "No Parking" signs in the lot at the time. Thecourt 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 [2013]), where the Courtof Appeals held that the defendant was deprived of effective assistance of counsel at hissuppression hearing. The Court reasoned that defense counsel's failure to marshal thefacts adduced at the hearing, "coupled with his failure to make appropriate argument inhis motion papers or to submit a post-hearing memorandum, meant that the defense neversupplied 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 thatdescribed the facts in a manner inconsistent with the testimony at the hearing, defensecounsel did not move to reargue the motion or otherwise correct the court's apparentfactual error. According to the Court, defense counsel's conduct could not be explainedas "strategic" and, therefore, "defendant was not afforded meaningful representation at acritical stage of th[e] prosecution" (id. at 934).
Notably, the Court in Clermont rejected the People's contention that "theconviction should be affirmed because there is record support for the order denyingsuppression 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 theineffective assistance claim, other than to note that, on appeal, the parties have presentedsubstantial arguments for and against suppression and the issue is close under ourcomplex DeBour jurisprudence." The Court "conditionally" modified thejudgment by remitting the matter to Supreme Court "for further proceedings on thesuppression application, to include legal argument by counsel for both parties and, ifdefendant 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 cocaineor the knife seized by the police from defendant's vehicle. Defense counsel also failed tomove for suppression of defendant's incriminating statement to the officer about theknife, 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 thecourt, made no legal argument regarding suppression, [*3]and submitted no post-hearing memorandum. In short, as inClermont, defense counsel "never supplied the hearing court with any legalrationale for granting suppression" (id. at 933).
Although the attorney in Clermont failed to move for reargument after thecourt misstated the facts in its suppression decision, which did not occur here, defensecounsel in this case did not even move for suppression, as did counsel inClermont. Moreover, defense counsel represented defendant for approximatelysix months and did not once meet with him.
Under the circumstances, we conclude that defendant did not receive effectiveassistance of counsel from the attorney who represented him at the suppression hearing.We have reviewed defendant's remaining contentions and conclude that they are eithermoot or lack merit. We therefore, as in Clermont, conditionally modify thejudgment by remitting the matter to County Court for "further proceedings on thesuppression application, to include legal argument by counsel for both parties and, ifdefendant so elects, reopening of the hearing" (id. at 934). In the event thatdefendant prevails on the suppression application, the judgment is reversed, the plea isvacated and the indictment is dismissed and, if the People prevail, then the judgment"should be amended to reflect that result" (id. at 932). Present—Smith,J.P., Fahey, Lindley, Valentino and Whalen, JJ.