People v. Spero

25 A.D.2d 882, 270 N.Y.S.2d 254, 1966 N.Y. App. Div. LEXIS 4131

Opinion

-In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered September 16, 1965, which, without a hearing, denied his application to vacate a judgment of the former County Court, Kings County, rendered June 12, 1961, convicting him of robbery in the first degree, grand larceny in the first degree, assault in the second degree and kidnapping, upon a jury verdict, and imposing sentence on the robbery count. The judgment was previously affirmed by this court (People v. Spero, 16 A D 2d 981) and leave to appeal to the Court of Appeals was denied on October 4, 1962 by Desmond, Ch. J., of that court. Order affirmed. Defendant seeks to vacate his conviction on the ground that certain evidence introduced at the trial was obtained as a result of an illegal search and seizure. Mapp v. Ohio (367 U. S. 643) was decided while the appeal from the judgment was pending. Defendant was precluded from invoking the doctrine of Mapp on appeal because he had failed to raise a constitutional objection to the introduction of the evidence in question at the trial. (People v. Friola, 11 N Y 2d 157.) He may not now resort to the remedy of coram nobis to apply Mapp retrospectively (People v. Muller, 11 N Y 2d 154; Linkletter v. Walker, 381 U. S. 618).

Beldoek, P. J., Ughetta, Christ, Hill and Benjamin, JJ., concur.