¶1For the reasons that Judge Smith stated in his dissent in People v Concepcion (17 NY3d 192, 201-207 [2011]), I remain convinced that People v LaFontaine (92 NY2d 470 [1998]) should be overruled. The majority thinks differently, and I would be constrained to accept their view of this case, except that LaFontaineclearly does not apply here.
¶2In LaFontaine, the trial court and Appellate Division found *950contrary rationales for denying a suppression motion. The trial court concluded that New Jersey police officers were authorized to execute a federal arrest warrant in New York, and explicitly rejected the rationale that the New Jersey police effected an authorized citizen’s arrest. However, the Appellate Division accepted the citizen’s arrest ground for denying suppression, thus deciding the appeal on an issue on which the defendant had prevailed. Similarly, in Concepcion, the trial court denied suppression to defendant on “inevitable discovery” grounds, and expressly rejected the alternative rationale of “consent,” while the Appellate Division denied suppression on that very basis.
¶3In both LaFontaineand Concepcion, the Appellate Division upheld a denial of suppression on a ground that the trial court had “explicitly rejected” (LaFontaine, 92 NY2d at 473; see also Concepcion, 17 NY3d at 196 [Appellate Division upheld denial of suppression on a basis that Supreme Court had “squarely rejected”]). Because the ground upon which the Appellate Division affirmed had previously been decided in appellant’s favor, we held that the Appellate Division should not have reached that issue.
¶4Here, on the other hand, the trial court ruled that both the police officer’s initial request for defendant’s name and his inquiry after he realized that defendant had given him a false name were permissible under the first level of De Bour police intrusion, “[t]he minimal intrusion of approaching to request information” (People v De Bour, 40 NY2d 210, 223 [1976]), while the Appellate Division ruled that the initial request for defendant’s name was permissible under the first level of De Bour, but that the officer’s second inquiry was justified by a “founded suspicion that criminal activity is afoot” (De Bour, 40 NY2d at 223), the second level of De Bour.
¶5What distinguishes this case from LaFontaineand Concepcionis that the trial court did not reach the rationale of the Appellate Division that the police officer had founded suspicion of criminal activity. Far from deciding the issue in defendant’s favor, the trial court, insofar as it was of the view that the officer’s second inquiry did not rise to the second level of De Bour, committed an error that if anything “adversely affected the appellant” (CPL 470.15 [1]).
¶6The result today is that the case will be remitted to the trial court, which will no doubt read the Appellate Division’s decision and deny suppression on De Boursecond-level grounds, instead of first-level grounds. This is a pointless exercise.
¶7*951In my view the Appellate Division’s ruling here is consistent with CPL 470.15 (1), and I would reach the merits. Because I believe that defendant’s arguments on appeal either lack merit or are unpreserved for our review, I would affirm the order of the Appellate Division.
¶8Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Jones concur in memorandum; Judge Pigott dissents and votes to affirm in an opinion in which Judge Smith concurs.
¶9Order reversed, etc.