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The People &C v. Reynaldo Concepcion

June 14, 2011

THE PEOPLE &C., RESPONDENT,
v.
REYNALDO CONCEPCION, APPELLANT.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

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. 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. 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 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," citing People v Romero (91 NY2d 750, 753-753 [1998]) and People v Goodfriend (64 NY2d 695, 697-698 [1984]) (92 NY2d at 474). 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], and 120.00 [1]); criminal possession of a weapon in the second, third, and fourth degrees (Penal Law § 265.03 [2]; former Penal Law § 265.02 [4]; 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 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.*fn1 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 overall 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 the 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, 14NY3d 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 1); and laments our unwillingness to overrule LaFontaine to correct the "major problem" caused by our folly (id. at 11). 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 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 ...


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