305 N.Y.S.2d 583, 61 Misc.2d 250, People v. Gates, (N.Y.Co.Ct. 1969)

Citation:305 N.Y.S.2d 583, 61 Misc.2d 250
Party Name:People v. Gates
Case Date:December 02, 1969

Page 583

305 N.Y.S.2d 583

61 Misc.2d 250

The PEOPLE of the State of New York, Plaintiff v. Arthur Richard GATES, Defendant.

Rockland County Court.

Dec. 2, 1969.

Page 584

Robert R. Meehan, Dist. Atty., Rockland County, for the people.

Edward R. Korman, New York City, and Kornfeld, Rew & Newman, Suffern, for defendant.

[61 Misc.2d 251] JOHN A. GALLUCCI, Judge.

This is an application in the nature of a writ of error coram nobis to vacate and set aside a judgment entered in this Court on the 14th day of February, 1967, convicting defendant, by a verdict of a jury, of murder in the first degree and sentencing him to life imprisonment.

Upon appeal, his conviction was affirmed by the Appellate Division (29 A.D.2d 843, 288 N.Y.S.2d 862) and by unanimous decision of the Court of Appeals (24 N.Y.2d 666, 301 N.Y.S.2d 597, 249 N.E.2d 450), and defendant now seeks postconviction relief.

Defendant claims as the basis for this coram nobis motion that his conviction resulted because of the improper admission into evidence on his trial of a set of fingerprints and a palm print. The palm print and one of the fingerprints matched those taken from the defendant at the time of his arrest. He contends both the fingerprints and the palm print were taken in violation of his rights under the Fourth and Fourteenth

Page 585

Amendments of the Constitution of the United States. He alleges he was arrested without probable cause, that his arrest was unlawful, that the fingerprints and the palm print were taken from him while he was illegally detained, therefore, such evidence is the product of an illegal arrest and should have been excluded or suppressed.

The Court of Appeals in its decision 24 N.Y.2d 666, at page 670, 301 N.Y.S.2d 597, at page 601, 249 N.E.2d 450, at page 452, stated, 'In the light of the Supreme Court's recent decision in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (decided April 22, 1969), there can be no doubt that fingerprint evidence is 'subject to the proscriptions of the Fourth and Fourteenth Amendments' and that such evidence is to be excluded if it be the product of an illegal arrest (394 U.S., at p. (723) 724, 89 S.Ct. at p. 1396). However, the fact is that Gates failed to challenge the admissibility of his fingerprints on the ground that they were the fruit of an unlawful arrest either by pretrial motion to suppress--as mandated by our practice (Code Crim.Proc., § 813--c)--or by objection at the trial to their receipt. This being so, it follows that the question is not preserved for our review upon appeal from the conviction. (See People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100.)

'The need to voice an objection in order to raise a question such as this is demonstrated by the present case. Although the defendant now asserts that his arrest was unlawful, his failure to object to the use of the evidence on that ground, or even to intimate that such an issue was in the case, deprived the People of any opportunity to show the information in the possession of the police at the time of Gates' arrest. It may well be that, when the arrest was effected--though only 45 minutes after the commission[61 Misc.2d 252] of the crime--the police had already gathered facts, such as the defendant's threats against his wife, which actually furnished reasonable grounds for believing that he had committed the crime. Certainly, on the basis of the record now before us, we should not presume otherwise. 6'

In Note 6, the Court said, 'We need not now consider whether the defendant would be entitled to a post-conviction hearing to determine the factual circumstances attending his apprehension. (Cf. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227.)'

The People oppose defendant's application as being the improper remedy for the relief sought.

It is undisputed that the objections now sought to be raised by the defendant were not asserted by him at the time of trial by means of statutory procedure, i.e., motions to suppress (Sections 813--c to i, inclusive, Code of Criminal Procedure), by objections during the conduct of the trial itself, or by motions in arrest of judgment or for a new trial. It was not until argument before the Court of Appeals on February 27, 1969, two years after defendant's conviction, that he, for the first time,

Page 586

raised the issue of alleged violation of his Federal constitutional rights and which he now claims requires that his judgment of conviction be vacated. The Court of Appeals on May 14, 1969, specifically noted both the substantive applicability of defendant's assertions (citing Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, decided April 22, 1969), as well as his failure to have preserved such issues for its review, and affirmed the judgment of conviction.

The fundamental issue presented, therefore, is whether defendant, having been denied state appellate relief, is now entitled to state post-conviction relief upon constitutional grounds not previously preserved and/or asserted by the defendant, and the substantive applicability of which was decided following defendant's conviction, but prior to his exhaustion of his state appellate remedies.

Inherent in defendant's application are the converging issues and principles affecting enforcement of state procedural requirements in accordance with Federal requirements of due process under the Fourth and...

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