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Defendant was charged with attempted murder, assault, criminal possession of a weapon, and criminal possession of a controlled substance where defendant was arrested for a shooting death, defendant's gray minivan was subsequently searched, and cocaine was recovered from a compartment behind the ashtray of the front console. After a jury convicted defendant of some of the charges, defendant appealed the Supreme Court's denial of his motion to suppress physical evidence. At issue was whether the Appellate Division erred by upholding the denial of suppression on a basis that the Supreme Court had squarely rejected. The court held that the Appellate Division's decision with respect to the suppression was clearly erroneous under People v. LaFontaine where CPL 470.15(1) precluded that court from affirming denial of suppression on the basis of consent because the trial judge ruled in defendant's favor on the issue. Consequently, the court had to decide whether granting suppression would be harmless with respect to defendant's conviction for the other crimes. The court held that there was no reasonable possibility that the evidence supporting the potentially tainted count, a drug possession crime related to the cocaine discovered, had a spillover effect on the guilty verdicts for weapon possession and assault. Accordingly, the order of the Appellate Division should be modified by remitting to the Supreme Court for further proceedings in accordance with the opinion, and as modified, affirmed.Receive FREE Daily Opinion Summaries by Email
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
The People &c.,
John Gemmill, for appellant.
Thomas S. Burka, for respondent.
The outcome of this appeal is dictated by our decision
in People v LaFontaine (92 NY2d 470 ).
Court denied suppression of plastic bags of cocaine and drug
paraphernalia seized after the defendant's arrest, basing its
ruling on one of several alternative grounds put forward by the
People to support the arrest's lawfulness.
subsequently pleaded guilty to third-degree criminal possession
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of a controlled substance.
On appeal, the Appellate Division, with two Justices
dissenting, disagreed with Supreme Court's rationale for its
suppression ruling, but upheld denial of suppression anyway,
based on a ground explicitly rejected by the trial judge and
therefore decided in LaFontaine's favor.
In short, the Justices
in the majority concluded that Supreme Court gave a wrong reason
and spurned a right reason on the way to reaching the correct
result -- i.e., denial of suppression.
The dissenting Justices
did not believe that denial of suppression was justified by
either the trial judge's rationale, or the alternative basis
endorsed by the majority.
A dissenting Justice granted
LaFontaine leave to appeal to us.
We did not decide the merits of the suppression debate
in the Appellate Division, explaining that CPL 470.15 (1) bars
that court from affirming a judgment, sentence or order on a
ground not decided adversely to the appellant by the trial court,
and CPL 470.35 (1) grants us no broader review powers in this
We noted that we had previously "construed CPL 470.15
(1) as a legislative restriction on the Appellate Division's
power to review issues either decided in an appellant's favor, or
not ruled upon, by the trial court," citing People v Romero (91
NY2d 750, 753-753 ) and People v Goodfriend (64 NY2d 695,
697-698 ) (92 NY2d at 474).
Because we agreed with the
Appellate Division's unanimous rejection of Supreme Court's
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reason for denying suppression -- the "only reviewable predicate
for a lawful arrest" -- we reversed the Appellate Division's
order affirming the judgment of conviction and sentence, and
remitted the matter to the trial judge for further proceedings
(id. at 472 [emphasis added]).
In this case, after defendant Reynaldo Concepcion was
arrested for shooting Stephen Brown, his gray minivan was
searched, and a little more than one-half ounce of cocaine was
recovered from a compartment behind the ashtray in the front
Defendant was eventually charged with second-degree
attempted murder (Penal Law §§ 110.00/125.25 ); assault in the
first, second, and third degrees (Penal Law §§ 120.10 , 120.05
, and 120.00 ); criminal possession of a weapon in the
second, third, and fourth degrees (Penal Law § 265.03 ; former
Penal Law § 265.02 ; Penal Law § 265.01 ); and criminal
possession of a controlled substance in the third, fourth, and
seventh degrees (Penal Law §§ 220.16 , 220.09 , 220.03).
When defendant moved to suppress physical evidence (the
cocaine), the People argued that he consented to the search of
the minivan, or, alternatively, that the drugs were admissible
under the inevitable discovery doctrine.
Supreme Court denied
the motion; the trial judge determined that the People failed to
establish defendant's consent, but that the cocaine would have
inevitably been discovered during an inventory search.
Following a jury trial, defendant was acquitted of
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attempted murder and first and second-degree assault.
convicted of second-degree weapon possession, third-degree drug
possession and third-degree assault, and Supreme Court sentenced
him to concurrent prison terms of 10 years, six years and one
Defendant appealed, bringing up for review
the denial of his motion to suppress physical evidence.
The People conceded in the Appellate Division that the
inevitable discovery doctrine was not applicable, but again
argued that defendant consented to the search.
Division agreed, and so -- just as in LaFontaine -- upheld the
denial of suppression on a basis that Supreme Court had squarely
rejected, and affirmed the judgment of conviction and sentence
(69 AD3d 956 [2d Dept 2010]).
After defendant unsuccessfully
moved to reargue, in part on the ground that LaFontaine barred
the Appellate Division from finding that he consented to the
search, a Judge of this Court granted him permission to appeal
(14 NY3d 886 ).
The Appellate Division's decision with respect to
suppression was clearly erroneous under LaFontaine; i.e., CPL
470.15 (1) precludes that court from affirming denial of
suppression on the basis of consent because the trial judge ruled
in defendant's favor on this issue.
All that remains for us to
decide on this appeal, then, is the proper remedy for this
In LaFontaine itself, we simply reversed and remitted
the matter to Supreme Court for further proceedings on the motion
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But these proceedings were necessarily going to
resolve the entire case because LaFontaine only pleaded guilty to
a drug crime.
That is not what happened here, where defendant
was convicted and sentenced for weapon possession and assault as
well as for a drug crime.
As a result, we must decide whether
granting suppression -- if this is the decision reached by the
trial court on remittal -- would be harmless with respect to
defendant's conviction for these other crimes.*
these convictions remain; if not, defendant is entitled to a new
trial on the counts of the indictment charging second-degree
weapon possession and third-degree assault.
"Whether an error in the proceedings relating to one
count requires reversal of convictions on other jointly tried
counts . . . can only be resolved on a case-by-case basis, with
due regard for the individual facts of the case, the nature of
the error and its potential for prejudicial impact on the overall outcome" (People v Baghai-Kermani, 84 NY2d 525, 532 ).
"[T]he paramount consideration in assessing" such so-called
"spillover error is whether there is a reasonable possibility
that the jury's decision to convict on the tainted counts
influenced the guilty verdict on the remaining counts in a
meaningful way" (People v Doshi, 93 NY2d 499, 505 
[internal quotation marks omitted]; see also People v Daly, 14
We have examined defendant's claim of ineffective
assistance of counsel and consider it to be meritless.
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NY3d 848 ).
In this case, there is no reasonable possibility that
the evidence supporting the potentially tainted count, a drug
possession crime related to the cocaine discovered in defendant's
vehicle, had a spillover effect on the guilty verdicts for weapon
possession and assault, which arose from defendant's shooting of
The proof of these latter crimes was furnished by
the testimony of the victim, who knew defendant before he was
shot (defendant was his drug supplier).
While in an ambulance
awaiting transport to the hospital for treatment of his gunshot
wound, the victim identified defendant to the police as his
assailant by nickname and appearance.
He also described the
color and make of the shooter's vehicle, which matched the
minivan driven by defendant when he was later apprehended by the
The dissent proclaims that our decision in LaFontaine
was a "mistake," which we have "never followed" (with the caveat
that, in some cases, perhaps our laxity might be explained by
counsel's neglect to mention the issue) (dissenting op at 1); and
laments our unwillingness to overrule LaFontaine to correct the
"major problem" caused by our folly (id. at 11).
these assertions in turn.
To support the proposition that we routinely pay no
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heed to LaFontaine, the dissent adduces several cases in the
context of arguing that "there is nothing particularly unusual in
an appellate court's affirming a decision below on alternative
grounds" (dissenting opinion at 5).
True -- but merely affirming
a case on alternative grounds does not ignore LaFontaine, which
is only implicated when an appellate court affirms a case on a
ground that was not decided adversely to the appealing party at
the trial level.
Or, as we also put it in LaFontaine, CPL 470.15
(1) is "a legislative restriction on the Appellate Division's
power to review issues either decided in an appellant's favor, or
not ruled upon, by the trial court" (LaFontaine, 92 NY2d at 474).
The dissent elides this point.
For example, in People v Wheeler (2 NY3d 370 ),
we stated that "Supreme Court denied defendant's motion to
suppress . . . in a broad holding encompassing two legal
standards: the protective sweep doctrine . . . and the
reasonableness analysis under the Fourth Amendment" (id. at 373
[internal citations omitted] [emphasis added]).
Division affirmed on the ground of protective sweep, and did not
reach the Fourth Amendment claim.
We rejected the protective
sweep analysis, but found the police conduct reasonable under the
Thus, although we affirmed the Appellate
Division on alternative grounds, neither that court nor this one
resolved the case against the defendant on an issue decided in
his favor (or not ruled upon) in the criminal court proceedings.
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People v Parris (4 NY3d 41 ), another case cited
by the dissent, seems particularly irrelevant.
In Parris, we
considered whether the defendant was entitled to a reconstruction
hearing when minutes of court proceedings were lost, which
related to the defendant's right to effective appellate review, a
defect that affected the appellate proceedings.
In short, there
was no "error or defect in the criminal court proceedings which
may have adversely affected the appellant" (CPL 470.15 ).
While our rationale was not the same as the Appellate Division's
(at issue was what a defendant needs to show to get a
reconstruction hearing), CPL 470.15 (1) and/or LaFontaine were
In People v Paulman (5 NY3d 122 ), the hearing
court determined that the second of the defendant's four
statements was not the product of custodial interrogation, even
though he was in custody.
The third and fourth statements, which
followed the issuance of Miranda warnings, were allowed into
evidence on the basis that the second statement (and the
defendant's first statement) were admissible.
Division held that the second statement should have been
suppressed because it was the product of interrogation, but
because the first, third and fourth statements were properly
admitted, admission of the second statement was harmless.
We agreed that the second statement was the product of custodial
interrogation and should have been suppressed, but affirmed the
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admission of the remaining statements because they were not the
product of a "single continuous chain of events" such that the
provision of Miranda warnings could not be effective.
This case comes the closest to presenting a LaFontaine
Having concluded that the second statement was not the
product of custodial interrogation, Supreme Court did not need to
decide if subsequent Mirandized statements were the product of an
In reaching a contrary determination
with regard to the second statement, perhaps the Appellate
Division should have remanded the case to the suppression court
so that it could determine whether the second statement rendered
the subsequent statements inadmissible -- an issue that was not
resolved in the criminal court proceedings because, as already
noted, Supreme Court did not need to do so, given its other
In retrospect, we may have inadvertently overlooked --
not deliberately ducked -- a LaFontaine error.
Of course, we
focus on arguments made by counsel, and in Paulman, both parties
asked us to decide attenuation if we concluded that the second
statement should be suppressed.
Our decision in People v Caban (5 NY3d 143 )
concerning the admission of a co-conspirator's statement, does
not reveal the basis for the trial court's determination to admit
the testimony, and therefore does not suggest that we affirmed on
a different ground.
The mere fact that the Caban opinions do not
expressly state that the trial court addressed the basis for the
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appellate decisions does not establish that the trial court did
not so rule or that we often deliberately "simply ignore
LaFontaine's existence" (dissenting op at 8).
And in People v
Carvajal (6 NY3d 305 ), while we decided that territorial
jurisdiction had been established for reasons different from
those adduced by the Appellate Division, the question of the
State's inherent authority to prosecute does not need to be
raised or preserved at trial in order to be reviewed on appeal.
As a result, no LaFontaine error was possible in Carvajal.
The dissent's reliance on People v Lewis (5 NY3d 546
) is also misplaced.
In Lewis, we wrote that "[u]nlawful
entry cannot itself be used as the sole predicate crime in the
'intent to commit a crime therein' element of burglary" as
otherwise every violation of a do-not-enter provision of an order
of protection would support a burglary conviction (id. at 551).
This statement was in conflict with what the Appellate Division
majority said in response to the opposing view expressed by the
dissent (see 13 AD3d 208, 211 [1st Dept 2004]).
But neither the
majority's view of this particular issue, nor ours, formed the
basis of either court's legal sufficiency determination.
we concluded, as did the Appellate Division (and the trial court
in rejecting the defendant's motion to dismiss), that the
evidence was legally sufficient to prove that the defendant
intended to commit a crime inside the apartment in a manner that
went beyond trespass, based on evidence that the defendant had,
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among other things, thrown the victim's personal belongings out
on the street (5 NY3d at 552; 13 AD3d at 209).
did not affirm the decision below on alternative grounds, but on
the same grounds as the lower courts.
In People v Fuentes (12 NY3d 259, 263 ), the
defendant was unaware of the existence of alleged Brady material
at trial, and so he did not cross-examine the witness with the
Discovering the material before delivering his
summation, the defendant's attorney moved for a mistrial, and the
trial court reserved decision until after the trial was
At that time, the court denied the motion on the
ground that the document was not material and, as a result, there
was no Brady violation.
The court also concluded that the
defendant received the document during trial and had an
opportunity to use it.
The Appellate Division affirmed on the
ground that the defendant had an opportunity to use the document
at trial (a ruling that was adverse to the defendant in the
criminal court proceedings), while we held that the document was
not material (a ruling that was also adverse to the defendant at
Thus, although we affirmed on a ground different from
the Appellate Division's rationale, we did not contravene
Finally, the dissent expresses fear about the future,
now that we have said that CPL 470.15 (1) still means what we
said it meant in 1984 (Goodfriend) and 1998 (Romero and
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litigation may take in the future, we find it telling that in the
past, defense counsel -- zealous advocates on their clients'
behalf -- did not spot the rampant LaFontaine error that the
dissent now claims existed all along.
The dissent and the People put forward what they
consider to be a better interpretation of CPL 470. 15 (1), which
would "permit what the Appellate Division did in this case"
(dissenting op at 3).
But in LaFontaine we rejected just such a
reading of the statute -- one that would allow appellate review
of any question of law (i.e., any preserved alternative ground
for affirmance) so long as it related to the overarching error or
defect (e.g., an erroneous suppression ruling).
When the People
moved in LaFontaine to reargue the meaning of CPL 470.15 (1) on
just this basis, we denied the motion.
And our decision in
LaFontaine was not a complete surprise, like a bolt of lightning
from a clear blue sky.
As the dissent acknowledges, Romero and
Goodfriend, which we relied on in LaFontaine, both "say . . .
that CPL 470.15 means what LaFontaine says it means" (dissenting
op at 3-4).
We commented in LaFontaine that the statute, as we
understood it, might cut against "sensible management" of
litigation (LaFontaine, 92 NY2d at 475).
We invited the
Legislature to take a look at the matter, noting that "[s]ince
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the anomaly rests on unavoidable statutory language, any
modification would be for the Legislature to change, if it so
So far, the Legislature has not "so wish[ed]."
Legislative inaction (which just may, after all, signal
satisfaction with CPL 470.15  as interpreted in LaFontaine) is
not a license for us, in effect, now to tell the Legislature
"Never mind," and refashion the statute's settled meaning with
the freedom we enjoy in matters of common law.
This would be
especially imprudent here, where the statute's subject is
appellate jurisdiction, which "can never be assumed, unless a
statute can be found which expressly sanctions its exercise"
(People v Zerillo, 200 NY 443, 446  [emphasis added]).
short, this is not, as the dissent remarks, an "excellent case .
. . for making an exception" to stare decisis (dissenting op at
4); rather, it is a particularly poor one.
Accordingly, the order of the Appellate Division should
be modified by remitting to Supreme Court for further proceedings
in accordance with this opinion, and as so modified, affirmed.
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People v Reynaldo Concepcion
People v LaFontaine (92 NY2d 470 ) was a mistake,
and a serious one -- so serious that in the 13 years since
LaFontaine was decided we have never followed it, though we have
had several cases that called for its application.
argue here that LaFontaine should be overruled.
I had hoped that
this would provide the occasion for giving that case a decent
burial, but the majority ill-advisedly resurrects it.
LaFontaine holds that the Appellate Division, in
reviewing a judgment, sentence or order of a trial-level criminal
court, may not consider any issue of law or fact that the lower
court did not decide against the appellant.
LaFontaine, it is impossible for the Appellate Division ever to
affirm on a ground that the trial court either did not reach or
decided, erroneously, in the appellant's favor.
holds that our Court is limited, in reviewing an Appellate
Division affirmance of a lower criminal court's judgment, to
matters that were "raised or considered" in the Appellate
Division, or that could have been raised or considered under
LaFontaine's restricted view of the Appellate Division's
jurisdiction (see LaFontaine, 92 NY2d at 474; CPL 470.35 ).
LaFontaine inflicts a large, completely unwarranted and
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unacceptable impairment on the jurisdiction of appellate courts.
Affirming a lower court judgment on a ground other than
the one the lower court relied on is something appellate courts
do all the time.
It is a gross waste of judicial resources to
require a new trial or other proceeding where the lower court has
reached the right result, even if it did so for the wrong reason.
We recognized in LaFontaine that our holding was undesirable from
a policy point of view, saying that it "blocks . . . sensible
management of this case" (92 NY2d at 475).
We thought that we
had no choice, however, because "the anomaly rests on unavoidable
statutory language" (id.).
We did not explain in LaFontaine why we thought that
statutory language made our holding "unavoidable."
were wrong to think so.
In fact, we
CPL 470.15 (1) says:
"Upon an appeal to an intermediate appellate
court from a judgment, sentence or order of a
criminal court, such intermediate appellate
court may consider and determine any question
of law or issue of fact involving error or
defect in the criminal court proceedings
which may have adversely affected the
In LaFontaine, we apparently assumed that the word
"involving" means "claimed to have caused"; in other words, that
the Appellate Division is limited to reviewing questions of law
and issues of fact which, the appellant claims, caused an error
or defect that adversely affected him.
But "involving" could
equally well be read to mean "necessary to decide a claim of" -so that the Appellate Division could review any issue necessary
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to a determination of whether there was an error or defect
adversely affecting the appellant.
This, it seems to me, is the
meaning the Legislature is much more likely to have intended.
one, so far as I know, has ever suggested a reason why the
Legislature should forbid appellate courts from affirming on
grounds other than those adopted by the court below.
As I read the statutory language, it permits what the
Appellate Division did in this case.
Appellant claimed, in the
Appellate Division, that he had been "adversely affected" by an
"error or defect in the criminal court proceedings" -- i.e., that
Supreme Court had wrongly denied suppression of the cocaine.
order to determine whether appellant was correct, the Appellate
Division had to "consider and determine" not only the inevitable
discovery issue that Supreme Court decided in the People's favor,
but also the issue of consent to the search, on which Supreme
Court agreed with appellant.
The consent issue was one
"involving" appellant's claim that there was an "error or defect
in the criminal court proceedings" that adversely affected him.
If -- as the Appellate Division decided -- he did consent to the
search, he was not "adversely affected" by any error.
We may have thought, when we decided LaFontaine, that
our prior cases had foreclosed the issue, but I believe we
accepted that conclusion too readily.
We relied on two earlier
decisions, People v Romero (91 NY2d 750 ) and People v
Goodfriend (64 NY2d 695 ), which do indeed say -- also
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without doing any analysis to demonstrate the point -- that CPL
470.15 means what LaFontaine says it means.
distinguishable; the issue that we found unreviewable there had
not been preserved in the trial court (see 91 NY2d at 753 [the
alternative argument was raised "for the first time" in the
Goodfriend may be distinguishable also.
The appeal to the Appellate Division in that case was by the
People, from an order vacating a verdict on grounds of
repugnancy; it is not clear from our brief memorandum opinion
whether the alternative grounds urged by the defendant would
logically have supported the trial court's order.
briefer memorandum in People v Karp (76 NY2d 1006 ) (not
cited in the LaFontaine opinion) merely relies on Goodfriend.
The majority attempts no defense of LaFontaine, either
as a matter of policy or logic.
It merely insists that
LaFontaine "settled" the law (majority op at 13) -- in other
words, that, even if it was a mistake, we cannot correct it.
course, this is the general rule.
Stare decisis ordinarily
requires us to follow our previous decisions, even when we think
they were wrong.
This is an excellent case, however, for making
While we recognized in LaFontaine that our decision
would have adverse practical consequences, we underestimated
Indeed, we appeared to think that LaFontaine was
almost sui generis; our opinion refers to "the unusual procedural
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posture of this case" (92 NY2d at 472) and to "the exceptional
procedural twist" that confronted us (id. at 475).
But there is
nothing particularly unusual in an appellate court's affirming a
decision below on alternative grounds.
In fact, we have done it
ourselves more than half a dozen times since LaFontaine was
decided, without citing LaFontaine once.
(Until today, our only
citation of LaFontaine was in People v Sparber, 10 NY3d 457, 472
n 8 , where we distinguished it.)
Thus in People v Wheeler (2 NY3d 370 ), a case
involving denial of a motion to suppress, Supreme Court and the
Appellate Division had denied suppression on a "protective sweep"
theory; we affirmed "under a different rationale" -- that "the
officers legitimately focused their attention on defendant during
the execution of the arrest warrants" (2 NY3d at 373, 374).
People v Parris (4 NY3d 41 ) we affirmed the denial of a
reconstruction hearing "on grounds different from those stated by
the Appellate Division" (id. at 45).
In People v Paulman (5 NY3d
122, 128 ), we affirmed the suppression of several of the
defendant's statements "[a]lthough our analysis differs in some
respects from that of the Appellate Division."
In People v Caban
(5 NY3d 143, 148-150 ), we affirmed a conviction,
concluding that certain statements, held below to be within an
exception to the hearsay rule (see People v Caban, 4 AD3d 274
[1st Dept 2004]), were not hearsay at all.
In People v Carvajal
(6 NY3d 305, 311 ), the Appellate Division affirmed a
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conviction on the ground "that territorial jurisdiction . . . had
been established under CPL 20.20 (1) (a)"; we affirmed under CPL
20.20 (1) (c), "[w]ithout reaching" the CPL 20.20 (1) (a) issue.
In People v Lewis (5 NY3d 546 ), we reviewed an
Appellate Division decision affirming a conviction.
Appellate Division had held that entry into premises in violation
of a court order could, by itself, satisfy the "unlawful entry"
element of the crime of burglary (see People v Lewis, 13 AD3d
208, 211 [1st Dept 2004]); we disagreed with that conclusion, but
affirmed on the alternative ground that the trial court's charge
(to the extent that any objection to it was preserved) was
consistent with a correct view of the law.
And in People v
Fuentes (12 NY3d 259, 263 ), the Appellate Division
affirmed a conviction on the ground that defendant had been given
an adequate opportunity to use a particular document.
affirmed "employing a different rationale" (id.) -- that the
document in question was not material (id. at 260).
In not one of these post-LaFontaine cases did we
discuss or cite LaFontaine.
Today's majority atones for the
omission by analyzing all seven.
It virtually admits that there
was LaFontaine error in one of them, Paulman, and tries to
reconcile the other six with the LaFontaine holding.
As to three
of the cases -- Parris, Carvajal and Fuentes -- the majority may
have a point.
(The point is debatable in each, but I will not
pause to debate it.)
But the majority is clearly wrong about
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Wheeler, Caban and Lewis.
The majority, relying on our reference in Wheeler to
the trial court's "broad holding encompassing two legal
standards" (2 NY3d at 373), implies that the trial court relied
in part, on the ground we adopted on appeal (majority op at 7);
but the record shows that the trial court relied on a single
ground, which we did not endorse: that the actions of the
officers were "reasonable" because "the officers were in the same
position as when they perform a protective sweep" (Wheeler,
Appendix for Defendant-Appellant at A-84).
majority speculates that in Caban the trial court may have relied
on the ground that was the basis for our affirmance (majority op
at 9); but the record refutes the speculation, showing that the
trial court admitted the evidence in question under the coconspirator exception to the hearsay rule (Caban, Appendix for
Defendant-Appellant, at A-46) -- not for the reason we gave, that
the evidence, to the extent relevant to the appeal, was "nonhearsay" (5 NY3d at 150).
(The trial court did later say that
there were other grounds for its ruling, but it did not say what
they were [Caban Appendix at A-48].)
In discussing Lewis, the
majority focuses only on the legal sufficiency issue, ignoring
the relevant part of our holding: that the trial court's original
charge to the jury was correct, for reasons other than those
relied on by the courts below (see 5 NY3d at 551; compare
majority op at 10-11).
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It is true that in only one of the seven postLaFontaine cases I have listed, Wheeler, was LaFontaine cited to
Perhaps that should not matter, since LaFontaine affects our
jurisdiction, but in any event all those cases, even the ones
that might be reconciled with LaFontaine, prove my basic point -affirmance on alternate grounds, which is forbidden to the
Appellate Division (and often to us) under LaFontaine, is much
more common than our opinion in LaFontaine itself implies.
(Affirmance on alternate grounds, though the majority seems to
think otherwise, is exactly the same thing as affirmance "on a
ground that was not decided adversely to the appealing party"
[majority op at 7].)
Indeed, I suspect that the list I have given of
alternative-ground affirmances in our court is only a partial
one; it is not easy to do a Lexis or Westlaw search for such
For similar reasons, I am unable to say how often the
Appellate Division does what we often do -- simply ignore
LaFontaine's existence -- but I am convinced it is very common.
A search of Appellate Division cases in Lexis and Westlaw for the
year 2010 finds not a single citation to LaFontaine; a search for
2009 finds one case in which it was followed (People v Falquez,
66 AD3d 918 [2d Dept 2009]), and one in which the court assumed,
without deciding, that it was applicable (People v Shepard, 67
AD3d 446 [1st Dept 2009]).
Here, the Appellate Division ignored
LaFontaine, though it is squarely applicable, and I do not have
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to seek far for another example: In People v Hunter (___ NY3d ___
[decided June 2, 2011]), we held that the Appellate Division
erred in affirming a conviction on a ground that the People had
failed to preserve, but there was a LaFontaine error in that case
Under LaFontaine, the Appellate Division could not affirm
on a ground not decided in the trial court, whether the issue was
preserved or not.
The Appellate Division in Hunter did not cite
LaFontaine (see People v Hunter, 70 AD3d 1343 [4th Dept 2010]).
Perhaps the Appellate Division departments, like our
Court, have been lucky in that counsel have frequently failed to
argue a LaFontaine issue.
If that is so, their luck and ours is
quite likely to run out after the bar reads today's decision.
A little thought will suggest the reason why neither
the Appellate Division nor our Court has been eager to invoke
LaFontaine, even where we should.
Its application leads to
Suppose a case in which the defendant
offers a document in evidence at a jury trial, and the People
object on two grounds -- that the document is hearsay and it is
The judge finds the document irrelevant, and does
not reach the hearsay question.
The Appellate Division disagrees
with the trial judge's ruling on relevance -- but it is obvious
at a glance that the document is inadmissible hearsay.
Appellate Division reverse the defendant's conviction, so that
there can be a new trial at which the document is again offered
and again excluded, this time on hearsay grounds?
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Or is the case
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remanded so that the judge can rule, months or years after the
trial, on the hearsay objection -- a ruling to be followed by
But I do not need to invent hypotheticals to make my
The majority today remits the case to Supreme Court "for
further proceedings in accordance with this opinion" (majority op
at 13), the same relief afforded in LaFontaine itself (92 NY2d at
Neither in LaFontaine nor here is there any discussion of
what those "further proceedings" should be.
The majority here
decides that defendant's convictions for weapon possession and
assault may stand, but what is going to happen to his drug
Are the drugs to be suppressed, even though the
Appellate Division found that defendant consented to the search,
and we have not suggested that the Appellate Division was wrong
Is it a general rule that where, as here, a trial court
is led to the right result by two offsetting errors, the wrong
result is required as a matter of law?
Or is Supreme Court free
to reconsider its previous ruling that defendant's consent was
In doing so, may it take into account the Appellate
Division's view on that subject -- though the majority holds
today that the expression of that view exceeded the Appellate
And what will trial courts do on
remittal in future cases, when the Appellate Division, as
required by LaFontaine and today's decision, reverses trial court
decisions that may have reached the correct result, without
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deciding whether the result was in fact correct?
Now that the majority has breathed new life into
LaFontaine, I really do not know what will happen.
Legislature will rescue the court system by amending the statutes
that we have, incorrectly, interpreted to create a major problem.
I hope so; but we suggested a legislative change in LaFontaine
itself (92 AD2d at 475), without result to date.
If there is a
workable alternative to the approach that New York appellate
courts have taken since the LaFontaine decision -- which is, in
many cases, to pretend that LaFontaine does not exist -- I do not
know what that is.
Order modified by remitting to Supreme Court, Kings County, for
further proceedings in accordance with the opinion herein and, as
so modified, affirmed. Opinion by Judge Read. Chief Judge
Lippman and Judges Ciparick, Graffeo and Jones concur. Judge
Smith dissents and votes to affirm in an opinion in which Judge
Decided June 14, 2011
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