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 crossexamined 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