People v. Mishkin

229 N.E.2d 454, 20 N.Y.2d 716, 282 N.Y.S.2d 779, 1967 N.Y. LEXIS 1305

Opinions

Order affirmed in a memorandum. The decision in Mapp v. Ohio (367 U. S. 643) was announced while this criminal action was pending on appeal, the judgment of conviction was affirmed by this court (15 N Y 2d 671) and likewise by the Supreme Court of the United States (383 U. S. 502). The Supreme Court stated that the constitutional questions under Mapp v. Ohio were “ not presented by the record with sufficient clarity ” (supra, pp. 512-513). Moreover, it is not now sought to be raised on appeal from the judgment of conviction but on the postconviction writ of error coram nobis where it is not available (People v. Muller, 11 N Y 2d 154; Linkletter v. Walker, 381 U. S. 618).

Concur: Judges Van Voorhis, Scileppi, Keating and Breitel. Chief Judge Fuld dissents and votes to reverse in the following opinion in which Judges Burke and Bergan concur.