THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v REYNALDO CONCEPCION, Appellant.
Court of Appeals of New York
Argued April 28, 2011; decided June 14, 2011
17 N.Y.3d 192 | 953 N.E.2d 779 | 929 N.Y.S.2d 541
Appellate Advocates, New York City (John Gemmill and Lynn W.L. Fahey of counsel), for appellant. I. The Appellate Division lacked jurisdiction to decide whether appellant consented to the search of his van when the issue of consent had not been determined adversely to him in the trial court. (People v LaFontaine, 92 NY2d 470; People v Romero, 91 NY2d 750; People v Goodfriend, 64 NY2d 695; People v Karp, 76 NY2d 1006; People v Cade, 74 NY2d 410; People v Colon, 65 NY2d 888; People v Falquez, 66 AD3d 918; People v Fields, 151 AD2d 598; People v Nieves, 67 NY2d 125; People v Ryan, 12 NY3d 28.) II. Appellant was denied the effective assistance of counsel by his attorney‘s failures to (a) make any argument in support of her motion to suppress the evidence, (b) object to inadmissible hearsay evidence, and (c) object to the prosecutor‘s improper summation arguments. (People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Montgomery, 293 AD2d 773; People v Donovan, 184 AD2d 654; People v Vauss, 149 AD2d 924;
Charles J. Hynes, District Attorney, Brooklyn (Thomas S. Burka and Leonard Joblove of counsel), for respondent. I. The trial court properly denied defendant‘s motion to suppress the cocaine recovered from his van. In any event, any error in the admission of that evidence was harmless with respect to the convictions of criminal possession of a weapon and assault. (People v LaFontaine, 92 NY2d 470; Schneckloth v Bustamonte, 412 US 218; People v Alvaranga, 84 NY2d 985; People v Thatch, 71 NY2d 906; People v Meredith, 49 NY2d 1038; People v Craig, 78 NY2d 616; Matter of Buffalo Columbus Hosp. v Axelrod, 165 AD2d 605; People v Stirrup, 91 NY2d 434; People v Giordano, 87 NY2d 441; Rocovich v Consolidated Edison Co., 78 NY2d 509.) II. Defendant received effective assistance of counsel. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; Bierenbaum v Graham, 607 F3d 36; Williams v Taylor, 529 US 362; People v Turner, 5 NY3d 476; People v Baker, 14 NY3d 266; People v Caban, 5 NY3d 143; People v Henry, 95 NY2d 563; Greiner v Wells, 417 F3d 305, 546 US 184; Rosario v Ercole, 601 F3d 118.)
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
We did not decide the merits of the suppression debate in the Appellate Division, explaining that construed only reviewable predicate for a lawful arrest
(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
—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 (
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
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.,
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 NY2d 525, 532 [1994]).
[T]he paramount consideration in assessing 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
such so-called
(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, never followed major problem
which we have
(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
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 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
(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,
(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
(
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 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
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
II.
The dissent and the People put forward what they consider to be a better interpretation of permit[ ] what the Appellate Division did in this case say . . . that
(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
(dissenting op at 203).
We commented in LaFontaine that the statute, as we understood it, might cut against sensible management [s]ince the anomaly rests on unavoidable statutory language, any modification would be for the Legislature to change, if it so wishes so wishe[d]. Never mind, can never be assumed, unless a statute can be found which expressly sanctions its exercise excellent case . . . for making an exception
of litigation (92 NY2d at 475). We invited the Legislature to take a look at the matter, noting that
(id.). So far, the Legislature has not
Legislative inaction (which just may, after all, signal satisfaction with
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
(People v Zerillo, 200 NY 443, 446 [1911] [emphasis added]). In short, this is not, as the dissent remarks, an
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.
SMITH, J. (dissenting). People v LaFontaine (92 NY2d 470 [1998]) was a mistake, and a serious one—so serious that in the 13 years since LaFontaine was decided we have never followed it, though we have had several cases that called for its application. The People argue here that LaFontaine should be overruled. I had hoped that this would provide the occasion for giving that case a decent burial, but the majority ill-advisedly resurrects it.
raised or considered
in the Appellate Division, or that could have been raised or considered under LaFontaine‘s restricted view of the Appellate Division‘s jurisdiction (see 92 NY2d at 474;
Affirming a lower court judgment on a ground other than the one the lower court relied on is something appellate courts do all the time. It is a gross waste of judicial resources to require a new trial or other proceeding where the lower court has reached the right result, even if it did so for the wrong reason. We recognized in LaFontaine that our holding was undesirable from a policy point of view, saying that it blocks . . . sensible management of this case the anomaly rests on unavoidable statutory language
(92 NY2d at 475). We thought that we had no choice, however, because
(id.).
We did not explain in LaFontaine why we thought that statutory language made our holding unavoidable.
In fact, we were wrong to think so.
Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.
In LaFontaine, we apparently assumed that the word involving claimed to have caused involving necessary to decide a claim of
means
; in other words, that the Appellate Division is limited to reviewing questions of law and issues of fact which, the appellant claims, caused an error or defect that adversely affected him. But
could equally well be read to mean
—so that the Appellate Division could review any issue necessary to a determination of whether there was an error or
As I read the statutory language, it permits what the Appellate Division did in this case. Appellant claimed, in the Appellate Division, that he had been adversely affected error or defect in the criminal court proceedings consider and determine involving error or defect in the criminal court proceedings adversely affected
by an
—i.e., that Supreme Court had wrongly denied suppression of the cocaine. In order to determine whether appellant was correct, the Appellate Division had to
not only the inevitable discovery issue that Supreme Court decided in the People‘s favor, but also the issue of consent to the search, on which Supreme Court agreed with appellant. The consent issue was one
appellant‘s claim that there was an
that adversely affected him. If—as the Appellate Division decided—he did consent to the search, he was not
by any error.
We may have thought, when we decided LaFontaine, that our prior cases had foreclosed the issue, but I believe we accepted that conclusion too readily. We relied on two earlier decisions, People v Romero (91 NY2d 750 [1998]) and People v Goodfriend (64 NY2d 695 [1984]), which do indeed say—without doing also any analysis to demonstrate the point—that for the first time
in the Appellate Division]). Goodfriend may be distinguishable also. The appeal to the Appellate Division in that case was by the People, from an order vacating a verdict on grounds of repugnancy; it is not clear from our brief memorandum opinion whether the alternative grounds urged by the defendant would logically have supported the trial court‘s order. Our even briefer memorandum in People v Karp (76 NY2d 1006 [1990]) (not cited in the LaFontaine opinion) merely relies on Goodfriend.
The majority attempts no defense of LaFontaine, either as a matter of policy or logic. It merely insists that LaFontaine settled
the law (majority op at 201)—in other words, that, even if it was a mistake, we cannot correct it. Of course, this is the general rule. Stare decisis ordinarily requires us to follow
While we recognized in LaFontaine that our decision would have adverse practical consequences, we underestimated their extent. Indeed, we appeared to think that LaFontaine was almost sui generis; our opinion refers to the unusual procedural posture of this case the exceptional procedural twist
(92 NY2d at 472) and to
that confronted us (id. at 475). But there is nothing particularly unusual in an appellate court‘s affirming a decision below on alternative grounds. In fact, we have done it ourselves more than half a dozen times since LaFontaine was decided, without citing LaFontaine once. (Until today, our only citation of LaFontaine was in People v Sparber [10 NY3d 457, 472 n 8 (2008)], where we distinguished it.)
Thus in People v Wheeler (2 NY3d 370 [2004]), a case involving denial of a motion to suppress, Supreme Court and the Appellate Division (302 AD2d 411 [2004]) had denied suppression on a protective sweep under a different rationale the officers legitimately focused their attention on defendant during the execution of the arrest warrants on grounds different from those stated by the Appellate Division [a]lthough our analysis differs in some respects from that of the Appellate Division. that territorial jurisdiction . . . had been established under CPL 20.20 (1) (a) [w]ithout reaching
theory; we affirmed
—that
(2 NY3d at 373, 374). In People v Parris (4 NY3d 41 [2004]) we affirmed the denial of a reconstruction hearing
(id. at 45). In People v Paulman (5 NY3d 122, 128 [2005]), we affirmed the suppression of several of the defendant‘s statements
In People v Caban (5 NY3d 143, 148-150 [2005]), we affirmed a conviction, concluding that certain statements, held below to be within an exception to the hearsay rule (see People v Caban, 4 AD3d 274 [1st Dept 2004]), were not hearsay at all. In People v Carvajal (6 NY3d 305, 311 [2005]), the Appellate Division affirmed a conviction on the ground
; we affirmed under
the
In People v Lewis (5 NY3d 546 [2005]), we reviewed an Appellate Division decision affirming a conviction. The Appellate Division had held that entry into premises in violation of a court order could, by itself, satisfy the unlawful entry employing a different rationale
element of the crime of burglary (see People v Lewis, 13 AD3d 208, 211 [1st Dept 2004]); we disagreed with that conclusion, but affirmed on the alternative ground that the trial court‘s charge (to the extent that any objection to it was preserved) was consistent with a correct view of the law. And in People v Fuentes
(12 NY3d at 263)—that the document in question was not material (id. at 260).
In not one of these post-LaFontaine cases did we discuss or cite LaFontaine. Today‘s majority atones for the omission by analyzing all seven. It virtually admits that there was LaFontaine error in one of them, Paulman, and tries to reconcile the other six with the LaFontaine holding. As to three of the cases—Parris, Carvajal and Fuentes—the majority may have a point. (The point is debatable in each, but I will not pause to debate it.) But the majority is clearly wrong about Wheeler, Caban and Lewis.
The majority, relying on our reference in Wheeler to the trial court‘s broad holding encompassing two legal standards reasonable the officers were in the same position as when they perform a protective sweep nonhearsay
(2 NY3d at 373), implies that the trial court relied in part on the ground we adopted on appeal (majority op at 198); but the record shows that the trial court relied on a single ground, which we did not endorse: that the actions of the officers were
because
(Wheeler, Appendix for Defendant-Appellant, at A-84). Similarly, the majority speculates that in Caban the trial court may have relied on the ground that was the basis for our affirmance (majority op at 199); but the record refutes the speculation, showing that the trial court admitted the evidence in question under the coconspirator exception to the hearsay rule (Caban, Appendix for Defendant-Appellant, at A-46)—not for the reason we gave, that the evidence, to the extent relevant to the appeal, was
(5 NY3d at 150). (The trial court did later say that there were other grounds for its ruling, but it did not say what they were [Caban, Appendix at A-48].) In discussing Lewis, the majority focuses only on the legal sufficiency issue, ignoring the relevant part of our holding: that the trial court‘s original charge to the jury was correct, for reasons other than those relied on by the courts below (see 5 NY3d at 551; compare majority op at 200).
It is true that in only one of the seven post-LaFontaine cases I have listed, Wheeler, was LaFontaine cited to us. Perhaps that should not matter, since LaFontaine affects our jurisdiction, but in any event all those cases, even the ones that might be reconciled with LaFontaine, prove my basic point—affirmance on alternate grounds, which is forbidden to the Appellate on a ground that was not decided adversely to the appealing party
[majority op at 197].)
Indeed, I suspect that the list I have given of alternative-ground affirmances in our court is only a partial one; it is not easy to do a Lexis or Westlaw search for such cases. For similar reasons, I am unable to say how often the Appellate Division does what we often do—simply ignore LaFontaine‘s existence—but I am convinced it is very common. 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 (People v Falquez, 66 AD3d 918 [2d Dept 2009]), and one in which the court assumed, without deciding, that it was applicable (People v Shepard, 67 AD3d 446 [1st Dept 2009]). Here, the Appellate Division ignored LaFontaine, though it is squarely applicable, and I do not have to seek far for another example: Twelve days ago, in People v Hunter (17 NY3d 725 [2011]), we held that the Appellate Division erred in affirming a conviction on a ground that the People had failed to preserve, but there was a LaFontaine error in that case also. Under LaFontaine, the Appellate Division could not affirm on a ground not decided in the trial court, whether the issue was preserved or not. The Appellate Division in Hunter did not cite LaFontaine (see People v Hunter, 70 AD3d 1343 [4th Dept 2010]).
Perhaps the Appellate Division departments, like our Court, have been lucky in that counsel have frequently failed to argue a LaFontaine issue. If that is so, their luck and ours is quite likely to run out after the bar reads today‘s decision.
A little thought will suggest the reason why neither the Appellate Division nor our Court has been eager to invoke LaFontaine, even where we should. Its application leads to multiple absurdities. Suppose a case in which the defendant offers a document in evidence at a jury trial, and the People object on two grounds—that the document is hearsay and it is irrelevant. The judge finds the document irrelevant, and does not reach the hearsay question. The Appellate Division disagrees with the trial judge‘s ruling on relevance—but it is obvious at a glance that the document is inadmissible hearsay. Must the Appellate Division reverse the defendant‘s conviction, so that there can be a new trial at which the document is again offered and again
But I do not need to invent hypotheticals to make my point. The majority today remits the case to Supreme Court for further proceedings in accordance with this opinion further proceedings
(majority op at 201), the same relief afforded in LaFontaine itself (92 NY2d at 476). Neither in LaFontaine nor here is there any discussion of what those
should be. The majority here decides that defendant‘s convictions for weapon possession and assault may stand, but what is going to happen to his drug conviction? Are the drugs to be suppressed, even though the Appellate Division found that defendant consented to the search, and we have not suggested that the Appellate Division was wrong in this? Is it a general rule that where, as here, a trial court is led to the right result by two offsetting errors, the wrong result is required as a matter of law? Or is Supreme Court free to reconsider its previous ruling that defendant‘s consent was invalid? In doing so, may it take into account the Appellate Division‘s view on that subject—though the majority holds today that the expression of that view exceeded the Appellate Division‘s jurisdiction? And what will trial courts do on remittal in future cases, when the Appellate Division, as required by LaFontaine and today‘s decision, reverses trial court decisions that may have reached the correct result, without deciding whether the result was in fact correct?
Now that the majority has breathed new life into LaFontaine, I really do not know what will happen. Perhaps the Legislature will rescue the court system by amending the statutes that we have, incorrectly, interpreted to create a major problem. I hope so; but we suggested a legislative change in LaFontaine itself (92 NY2d at 475), without result to date. If there is a workable alternative to the approach that New York appellate courts have taken since the LaFontaine decision—which is, in many cases, to pretend that LaFontaine does not exist—I do not know what that is.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO and JONES concur with Judge READ; Judge SMITH dissents and votes to affirm in a separate opinion in which Judge PIGOTT concurs.
Order modified, etc.