Parting shots.

Author:Smith, Robert S.
Position:3 cases that should not be precedent

Some people are made miserable on their deathbeds by the knowledge that their worst enemies are going to survive them. I am not that type. Anyone who knows me will tell you that I am a good-natured, forgiving sort of guy. But as I leave the Court of Appeals, I do feel some frustration that several precedents I have long wanted to slay remain on the books--though I am comforted by the knowledge that they have taken some hits, and may yet take more. In this article, I will utter a few dying imprecations against three of my unfavorite cases, in the hope that they will not prove immortal.

The three cases I am complaining about are People v. LaFontaine, (1) People v. Hines, (2) and Bard v. Jahnke. (3)


    LaFontaine isn't a case that will get many people excited. In fact, it's a case that no one but specialists in criminal appellate practice has ever heard of, and most of them don't understand it. To simplify, it holds that no appellate court--not the appellate division, not the Court of Appeals--can affirm an order or judgment in a criminal case on any ground except one that the trial-level court decided against the appellant. (4) If an issue was argued to the trial-level court, but that court didn't reach it, the appellate court can't consider it. (5) And if the trial-level court did reach the issue, and it mistakenly decided it in the appellant's favor, the appellate court can't correct the error. (6)

    I have never heard anyone suggest that this is a good rule, or even that it makes sense. The court that decided LaFontaine itself acknowledged that it was a bad rule--that it "blocks ... sensible management of this case"; but the court said that "the anomaly rests on unavoidable statutory language." (7) In fact, the conclusion the LaFontaine court drew from the statute (8) is not at all unavoidable. It's not even correct, as I demonstrated in my dissenting opinion, joined by Judge Eugene Pigott, in People v. Concepcion, (9) a case in which the majority refused to overrule LaFontaine. (10) The Concepcion majority didn't say either that the LaFontaine rule was a good rule or that LaFontaine had read the statute correctly. It just said that my arguments had already been rejected in LaFontaine, and that the legislature had had thirteen years to amend the statute, and hadn't. (11)

    I won't bore you with the statutory interpretation debate. If you're interested, you can read the opinions in LaFontaine and Concepcion. But I will rant a little more about how really bad the LaFontaine rule is. It means, essentially, that an appellate court must reverse a criminal conviction, or an order granting or denying the suppression of evidence, even where the appellate court is completely satisfied that the decision below was right. For example, if the trial judge denied suppression of some evidence on the mistaken ground that defendant lacked standing to challenge the search, the order denying suppression must be reversed--even if there was nothing wrong with the search itself. If the trial-level judge was right for the wrong reason, he or she gets the case back and--at best--has a chance to try again, and the parties get to pursue another appeal. The rule accomplishes nothing but time-wasting and confusion.

    And the LaFontaine problem isn't a rare one. Appellate courts are confronted all the time with decisions that are right for the wrong reason. So often, in fact, that I'm convinced that LaFontaine would be unworkable if consistently applied. It never has been; the usual approach of appellate courts is to pretend that LaFontaine doesn't exist. I said in my Concepcion dissent: "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, and one in which the court assumed, without deciding, that it was applicable." (12)

    In preparing this article, I did a similar search in October 2014 (on Westlaw only) for the current and preceding years. For 2014, I found one cases where LaFontaine appears to have controlled the result (13) and another where it was an alternative basis for the court's holding. (14) I also found two 2014 cases from the appellate division in which LaFontaine was cited by the dissent--and ignored by the majority. (15) For 2013, the search was a bit more productive: I found three appellate division cases in which LaFontaine appears actually to have affected the result. (16) I find it impossible to believe that, among the thousands of criminal cases that the appellate division decides each year, LaFontaine problems are this rare.

    Our own court, too, has been less than fanatical in rooting out LaFontaine error, as I pointed out last year in a dissenting opinion. (17) More recently, we dealt LaFontaine what seems to me a heavy blow. I thought People v. Garrett (18) was a classic LaFontaine case. The issue was whether the prosecution had violated the defendant's rights under Brady u. Maryland, (19) The county court ruled for the People on the ground that the prosecution was not chargeable with knowledge of the allegedly withheld information. (20) The appellate division and our court affirmed on the ground that the information was not material--an issue the county court had not reached. The majority opinion found no LaFontaine problem:

    [A]lthough County Court did not expressly state whether the contents of the civil complaint against Detective O'Leary were material for purposes of Brady, our decisions in People v. LaFontaine and People v. Concepcion do not bar us from deciding the materiality of that information. To be sure, LaFontaine and its progeny preclude our review of an entirely distinct alternative ground for affirmance which the court of first instance did not decide adversely to the appellant. However, for purposes of LaFontaine's procedural bar, a court's finding that the prosecution did not constructively possess or suppress potential Brady information and a court's finding that the information is not material are not separate alternative grounds for decision, as neither finding is clearly separate and analytically distinct from the court's determination that the...

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