People v. Christopher A. Nicholson
AD4 order dated June 20, 2014, modifying judgment of conviction. Decision below: 118 AD3d 1423, 988 NYS2d 765. Lindley (AD dissenter), J., granted leave August 12, 2014. Argued January 13, 2016.
ISSUES PRESENTED: (1) Improper rebuttal evidence to impeach the sole defense witness on a collateral matter. (2) The admissibility of expert testimony on child sex abuse accommodation syndrome to explain the victim’s delayed disclosure. (3) Ineffective assistance of counsel. (Assigned counsel: Mary P. Davison, PO Box 652, 61 North Main Street, Suite C, Canandaigua, NY 14424.)
Issue before the Court: Whether LaFontaine bars an appellate court from reviewing the record to “discern” an “unarticulated predicate” for a court’s ruling.
Held: Where a trial court does not identify the predicate for a ruling, an appellate court may look beyond the ruling to “consider the import of the trial judge’s stated reasoning” to determine whether the court’s ruling was correct.
Nearly twenty years ago, in People v. LaFontaine, 92 N.Y.2d 470 (1998), the Court ruled that CPL § 470.15(1) barred the intermediate appellate courts, and CPL §470.35 barred it, from affirming on a ground not decided adversely to the appellant by the trial court. In other words, an appellate court can only affirm the decision of the trial court if the decision the trial court made was right, it cannot conclude that the trial court’s ruling was wrong, but find another reason to support the ultimate ruling to make it right. If, for example, the trial court denied suppression because it found a stop was supported by probable cause, an appellate court cannot find that, although there was no probable cause, the stop was supported by reasonable suspicion, and that was adequate to justify the police officers’ actions.
In the years immediately following LaFontaine, the rule gained little traction, particularly in the Court of Appeals, until 2011, when the Court decided People v. Concepcion, 17 N.Y.3d 192. In Concepcion, over a skeptical dissent from Justice Smith, the Court held that it meant what it said in LaFontaine. In the wake of Concepcion, the Court of Appeals and the Appellate Divisions carefully applied LaFontaine’s reviewability bar, extending it beyond the suppression context. See, e.g., People v. Yusuf, 19 N.Y.3d 314 (2012)(Court could not review underlying determination that North Carolina robbery statute was broader than any New York felony). The Court even extended LaFontaine to bar review of issues not only expressly rejected by the trial court, but also those not decided by it People v. Ingram, 18 N.Y.3d 948, 949 (2012)(appellate court cannot uphold suppression a theory not reached by the suppression court.)
Recent cases from the Court indicate that LaFontaine’s high-water mark may have passed. In People v. Garrett, the court concluded, in a footnote, that LaFontaine does not bar review of alternate grounds for a decision if those alternate grounds are part of a “multipronged” standard. Only grounds that are “entirely distinct” are subject to LaFontaine’s proscription. 23 N.Y.3d 878, 885, n.2 (2014)(because Brady violation test consisted of three parts, Court was permitted to review all preserved aspects of Brady issue, even those found by the trial court in defendant’s favor). See, People v. Sanders, 26 N.Y.3d 773, 777, n.2 (2016) (Court rejected defendant’s claim that LaFontaine rule forbid review of whether items were in plain view, even thoughnot at issue before the hearing court, because “the People invoked the plain view doctrine before the hearing court, and the issue was decided adversely to defendant when that court denied suppression).
In Nicholson, the Court appears to have softened LaFontaine’s bar even further, allowing the appellate court to supply a reason for a court ruling not provided by the trial court. There, defendant was charged with raping his daughter over the course of several years. At the time of the alleged rape, the defendant was divorced from his daughter’s mother, but the child occasionally visited him overnight. On his direct case, he called his former girlfriend, who testified that she was in the house at the time the abuse allegedly occurred, but that she did not witness any violence against the child. She testified that, after she stopped seeing defendant she continued to maintain a friendship with him, even after he remarried. After the defense rested, the People sought to call the defendant’s second wife, whom he married after breaking up with his girlfriend, to controvert the girlfriend’s claim that she remained friends with defendant after he remarried. Defense counsel objected on the grounds that the second wife’s testimony would have been collateral. After discussion about whether the testimony would establish that the girlfriend had lied when she’d said she remained friends with defendant, the trial court allowed the rebuttal testimony.
On appeal, the Appellate Division found that the rebuttal testimony was permissible because it supported an inference that the girlfriend had a motive to fabricate. Defendant challenged that ruling on LaFontaine grounds: the trial court’s sole basis for admitting the testimony was to establish that the girlfriend had lied, and the Appellate Division admitted it as proof of bias. Labeling defendant’s position “flawed and overly narrow,” the Court of Appeals found the rebuttal testimony proper, ruling, “[w]here a trial court does not identify the predicate for its ruling, the Appellate Division acts appropriately in considering the import of the trial judge’s stated reasoning.” The LaFontaine rule does not prohibit an appellate court to look to the “unspoken, record-supported inferences” that can be drawn from the record to identify the legal basis for the ultimate ruling. By the Court’s reckoning, any other interpretation “would require a trial judge to state every analytic step underlying a determination to admit or deny evidence,” to render a claim reviewable.
While the Court’s reasoning is superficially appealing, there does not appear to have been any need to look beyond the colloquy, because the trial court stated the basis upon which it was finding the testimony admissible: the second wife was permitted to testify to controvert what had been “brought out on the direct case,” i.e., the girlfriend had lied about having remained friends with defendant after he remarried. There was nothing ambiguous about that ruling; it needed no resort to interpretation. The Court’s ultimate ruling appears to substitute a legally valid basis for the rebuttal testimony never discussed or considered in the trial court.