p. 248The People of the State of New York, Appellant, v. Martin Kelly and Howard Koenig, Respondents.Argued February 19, 1963;decided February 28, 1963.
p. 249Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for appellant.
The failure to make objection on constitutional grounds to evidence claimed to be the product of an unlawful search and seizure is a waiver of the right to be secure from such action, and such claim may not be raised on appeal. (Mapp v. Ohio, 367 U. S. 643 ; People v. Loria, 10 N Y 2d 368 ; People v. O’Neill, 11 N Y 2d 148 ; People v. Friola, 11 N Y 2d 157 ; People v. Coffey, 11 N Y 2d 142 ; People v. Yarmosh, 11 N Y 2d 397 ; United States v. Sheba Bracelets, 248 F. 2d 134 , 355 U. S. 904 ; United States v. Di Donato, 301 F. 2d 383 , 370 U. S. 917 ; Ramirez v. United States, 294 F. 2d 277 ; Zachary v. United States, 275 F. 2d 793 , 364 U. S. 816 , 364 U. S. 906 ; Jordan v. United States, 254 F. 2d 710 ; United States v. Herskovitz, 209 F. 2d 881 ; United States v. Sferas, 210 F. 2d 69 .)Sidney G. Sparrow and Robert E. Sparrow for respondents.
I. The failure of counsel to adequately object to the admission of evidence illegally seized is not a waiver of such constitutional privilege. II. The determination and order of the intermediate appellate court was just and proper.The order should be affirmed. However, some of the statements in the opinion of the intermediate court (former Appellate Part of Special Sessions) prompt us to elaborate somewhat on the jurisdictional and procedural questions there discussed.
The Appellate Part correctly held (see People v. Loria, 10 N Y 2d 368 ) that the exclusionary doctrine of Mapp v. Ohio ( 367 U. S. 643 ) applies to criminal causes tried before the Mapp ruling. The court next stated that “ the absence of exception to the admissibility of the offending evidence in the trial court is not a bar to a review” and that failure to voice such an
p. 250exception is not a waiver of the law point. Taken at its fullest, the second of those statements is contrary to
People v.
Coffey ( 11 N Y 2d 142 );
People v.
O’Neill ( 11 N Y 2d 148 ), and
People v.
Friola ( 11 N Y 2d 157 ) which hold that in the Court of Appeals the illegal evidence point is unavailable when it has not been brought to the attention of the trial court. However, an intermediate appellate court may, regardless of objections or exceptions, reverse in the interests of justice or because the trial court judgment was against the weight of evidence. In arriving at its conclusion as to “ interests of justice ” or weight of evidence, the intermediate court is not precluded from taking into consideration the circumstance that illegal evidence was taken.
Since the reversal here was soundly based on grounds within the intermediate appellate court’s competence, we affirm.,
Judges Dye, Fuld, Van Voorhis, Burke, Foster and Scileppi concur.
Order affirmed.