People v. Concepcion

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: OPINION OF THE COURT
• Citation: People v. Concepcion, 17 N.Y.3d 192, 953 N.E.2d 779, 929 N.Y.S.2d 541, 2011 N.Y. Slip Op. 5110 (N.Y. 2011)
• Decision Date: 14 June 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Reynaldo CONCEPCION, Appellant.

17 N.Y.3d 192

953 N.E.2d 779

929 N.Y.S.2d 541

2011 N.Y. Slip Op. 05110

The PEOPLE of the State of New York, Respondent,

v.Reynaldo CONCEPCION, Appellant.

Court of Appeals of New York.

June 14, 2011.

Appellate Advocates, New York City (John Gemmill and Lynn W.L. Fahey of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn (Thomas S. Burka and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

READ, J.

The outcome of this appeal is dictated by our decision in People v. LaFontaine, 92 N.Y.2d 470, 682 N.Y.S.2d 671, 705 N.E.2d 663 (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, 603 N.Y.S.2d 660 [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 ( People v. LaFontaine, 235 A.D.2d 93, 664 N.Y.S.2d 587 [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 endorsed by the majority. A dissenting Justice granted LaFontaine leave to appeal to us (91 N.Y.2d 883, 668 N.Y.S.2d 582, 691 N.E.2d 654 [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 N.Y.2d at 474, 682 N.Y.S.2d 671, 705 N.E.2d 663, citing People v. Romero, 91 N.Y.2d 750, 753–754, 675 N.Y.S.2d 588, 698 N.E.2d 424 [1998] and People v. Goodfriend, 64 N.Y.2d 695, 697–698, 485 N.Y.S.2d 519, 474 N.E.2d 1187 [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, 682 N.Y.S.2d 671, 705 N.E.2d 663 [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 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 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 A.D.3d 956, 893 N.Y.S.2d 283 [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 N.Y.3d 886, 903 N.Y.S.2d 774, 929 N.E.2d 1009 [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 potential for prejudicial impact on the over-all outcome” ( People v. Baghai–Kermani, 84 N.Y.2d 525, 532, 620 N.Y.S.2d 313, 644 N.E.2d 1004 [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 N.Y.2d 499, 505, 693 N.Y.S.2d 87, 715 N.E.2d 113 [1999] [internal quotation marks omitted]; see also People v. Daly, 14 N.Y.3d 848, 902 N.Y.S.2d 499, 928 N.E.2d 683 [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, 929 N.Y.S.2d at 547, 953 N.E.2d at 785); and laments our unwillingness to overrule LaFontaine to correct the “major problem” caused by our folly ( id. at 207, 929 N.Y.S.2d at 552, 953 N.E.2d at 790). 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, 929 N.Y.S.2d at 549, 953 N.E.2d at 787). 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” (92 N.Y.2d at 474, 682 N.Y.S.2d 671, 705 N.E.2d 663). The dissent elides this point.

For example, in People v. Wheeler, 2 N.Y.3d 370, 779 N.Y.S.2d 164, 811 N.E.2d 531 (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, 779 N.Y.S.2d 164, 811 N.E.2d 531 [citations omitted and emphasis added] ). The Appellate Division affirmed on the ground of protective sweep, and did not reach the Fourth Amendment claim (302 A.D.2d 411, 754 N.Y.S.2d...