| People v Layou |
| 2015 NY Slip Op 09721 [134 AD3d 1510] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael Layou, 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 pleaof guilty, of criminal possession of a controlled substance in the third degree.
It is hereby ordered that the amended judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from an amended judgment convicting him, uponhis 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 defendantwas deprived of effective assistance of counsel by the attorney assigned to represent himat a suppression hearing, inasmuch as counsel, inter alia, " 'never supplied thehearing court with any legal rationale for granting suppression' " (People v Layou, 114 AD3d1195, 1198 [2014], quoting People v Clermont, 22 NY3d 931, 933 [2013]). Wetherefore remitted 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., quotingClermont, 22 NY3d at 934).
Upon remittal, the court reopened the suppression hearing and heard testimony fromfour defense witnesses, including defendant, none of whom had testified at the firstsuppression hearing. Following the hearing, both sides submitted memoranda of law insupport of their positions. The court again denied the motion. Defendant now contendsthat the court erred in denying his motion to suppress physical evidence because, amongother 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'svehicle was not illegally parked when the officer made his initial approach, and that theapproach was therefore unlawful inasmuch as it was not "undertaken for an objective,credible reason" (People v Ocasio, 85 NY2d 982, 984 [1995]). We reject thatcontention.
It is well settled that great deference should be given to the determination of thesuppression court, which had the opportunity to observe the demeanor of the witnessesand to assess their credibility, and its factual findings should not be disturbed unlessclearly erroneous (see People v Prochilo, 41 NY2d 759, 761 [1977]; People vPitsley, 185 AD2d 645, 645 [1992], lv denied 81 NY2d 792 [1993]). Here,the arresting officer testified that he approached defendant's vehicle because it wasparked in a municipal lot directly in front of a "No Parking" sign. Contrary to defendant'scontention, there is nothing about the officer's testimony in that regard that is"unbelievable as a matter of law, manifestly untrue, physically impossible, contrary toexperience, or self-contradictory" (People v James, 19 AD3d 617, 618 [2005], lvdenied 5 NY3d 829 [2005]). In fact, the officer's testimony was corroborated by thatof defendant's former attorney, who testified at the suppression hearing that, when hewent to the parking lot in question approximately 15 months [*2]after defendant's arrest, he observed a "No Parking" sign"underneath some snow and ice and other materials", with its metal pole having beenbent flat to the ground. Even assuming, arguendo, that the sign was in that conditionwhen the officer approached defendant's parked vehicle, we note that, as the officertestified, no parking was allowed in the lot. Moreover, it is immaterial whether otherpeople 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 officerlacked an objective, credible reason to approach the vehicle, and properly denied hismotion to suppress contraband recovered from the vehicle and defendant's person.
Finally, we reject defendant's remaining contention that the indictment should bedismissed based on our prior finding that he was deprived of effective assistance ofcounsel at the first suppression hearing. Present—Scudder, P.J., Centra, Lindley,Valentino and Whalen, JJ.