People v. Concepcion

OPINION OF THE COURT

Read, J.

The outcome of this appeal is dictated by our decision in People v LaFontaine (92 NY2d 470 [1998]). There, Supreme 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 (159 Misc 2d 751 [1993]). LaFontaine subsequently pleaded guilty to third-degree criminal possession 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 (235 AD2d 93 [1997]). 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 *195endorsed by the majority. A dissenting Justice granted LaFontaine leave to appeal to us (91 NY2d 883 [1997]).

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 regard. 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” (92 NY2d at 474, citing People v Romero, 91 NY2d 750, 753-754 [1998] and People v Goodfriend, 64 NY2d 695, 697-698 [1984]). Because we agreed with the Appellate Division’s unanimous rejection of Supreme Court’s 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 console. Defendant was eventually charged with second-degree attempted murder (Penal Law §§ 110.00, 125.25 [1]); assault in the first, second, and third degrees (Penal Law § 120.10 [1]; § 120.05 [2]; § 120.00 [1]); criminal possession of a weapon in the second, third, and fourth degrees (Penal Law § 265.03 [2]; Penal Law § 265.02 [4], later repealed by L 2006, ch 742, § 1; Penal Law § 265.01 [1]); and criminal possession of a controlled substance in the third, fourth, and seventh degrees (Penal Law § 220.16 [1]; § 220.09 [1]; § 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 attempted murder and first- and second-degree assault. He was convicted *196of 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 year, respectively. 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. The Appellate 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 [2010]).

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 mistake. In LaFontaine itself, we simply reversed and remitted the matter to Supreme Court for further proceedings on the motion to suppress. 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.* If harmless, 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 *197potential for prejudicial impact on the over-all outcome” (People v Baghai-Kermani, 84 NY2d 525, 532 [1994]).

“[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 its guilty verdict on the remaining counts in a meaningful way” (People v Doshi, 93 NY2d 499, 505 [1999] [internal quotation marks omitted]; see also People v Daly, 14 NY3d 848 [2010]).

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 victim. 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 police.

The Dissent

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 201); and laments our unwillingness to overrule LaFontaine to correct the “major problem” caused by our folly (id. at 207). We address these assertions in turn.

I.

To support the proposition that we routinely pay no 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 op at 204). 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 *198“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” (92 NY2d at 474). The dissent elides this point.

For example, in People v Wheeler (2 NY3d 370 [2004]), 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 [citations omitted and emphasis added]). The Appellate Division affirmed on the ground of protective sweep, and did not reach the Fourth Amendment claim (302 AD2d 411 [2004]). We rejected the protective sweep analysis, but found the police conduct reasonable under the Fourth Amendment. 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.

People v Parris (4 NY3d 41 [2004]), 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 [1]). 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 not involved.

In People v Paulman (5 NY3d 122 [2005]), 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. The Appellate 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 (11 AD3d 878 [2005]). We agreed that the second statement was the product of custodial interrogation and should have been suppressed, but affirmed the admission of the remaining statements because they were *199not the product of a “single continuous chain of events” such that the provision of Miranda warnings could not be effective (5 NY3d at 150).

This case comes the closest to presenting a LaFontaine problem. 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 un-Mirandized statement. 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 rulings. 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 [2005]) concerning the admission of a coconspirator’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 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 206). And in People v Carvajal (6 NY3d 305 [2005]), while we decided that territorial jurisdiction had been established for reasons different from those adduced by the Appellate Division (14 AD3d 165 [2005]), 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 [2005]) 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 *200response 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. Rather, 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, among other things, thrown the victim’s personal belongings out on the street (5 NY3d at 552; 13 AD3d at 209). Accordingly, we 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 [2009]), the defendant was unaware of the existence of alleged Brady material at trial, and so he did not cross-examine the witness with the information. 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 completed. 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 (48 AD3d 479 [2009]) 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 trial). Thus, although we affirmed on a ground different from the Appellate Division’s rationale, we did not contravene LaFontaine.

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 LaFontaine) (see dissenting op at 207). Whatever course 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.

II.

The dissent and the People put forward what they consider to be a better interpretation of CPL 470.15 (1), which would *201“permit[ ] what the Appellate Division did in this case” (dissenting op at 203). 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 203).

We commented in LaFontaine that the statute, as we understood it, might cut against “sensible management” of litigation (92 NY2d at 475). We invited the Legislature to take a look at the matter, noting that “[s]ince the anomaly rests on unavoidable statutory language, any modification would be for the Legislature to change, if it so wishes” (id.). So far, the Legislature has not “so wishe[d].” Legislative inaction (which just may, after all, signal satisfaction with CPL 470.15 [1] 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 [1911] [emphasis added]). In short, this is not, as the dissent remarks, an “excellent case . . . for making an exception” to stare decisis (dissenting op at 204); 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.

We have examined defendant’s claim of ineffective assistance of counsel and consider it to be meritless.