36 A.D.2d 761, People v. Gates

• Citation: 36 A.D.2d 761, 319 N.Y.S.2d 569
• Party Name: People v. Gates
• Case Date: March 22, 1971
• Court: New York Supreme Court Appelate Division, Second Department

Page 761

36 A.D.2d 761

319 N.Y.S.2d 569

The PEOPLE, etc., Respondent,

v.

Arthur Richard GATES, Appellant.

Supreme Court of New York, Second Department

March 22, 1971.

[319 N.Y.S.2d 570] Before HOPKINS, Acting P.J., and MUNDER, CHRIST, BRENNAN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a Coram nobis proceeding, defendant appeals from an order of the County Court, Rockland County, entered December 30, 1969, which denied the application without a hearing.

Order affirmed.

Appellant was convicted of murder in the first degree in 1967. The judgment was affirmed on appeal (People v. Gates, 29 A.D.2d 843, affd. 24 N.Y.2d 666, 301 N.Y.S.2d 597, 249 N.E.2d 450). He now seeks to vacate that conviction on the ground that his rights under the Fourth and Fourteenth Amendments were violated by the admission of certain fingerprint evidence at his trial, which evidence was allegedly the product of an illegal arrest (see Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676).

Appellant never raised his Fourth Amendment claim in the trial court--either by motion to suppress or objection upon the trial to receipt of the evidence. Rather, it was first asserted in the Court of Appeals, which did not pass upon its merits because the issue had not been preserved for appellate review and the record was naturally barren of any evidence relating directly to the legality of the arrest (People v. Gates, [319 N.Y.S.2d 571] 24 N.Y.2d 666, 670, 301 N.Y.S.2d 597, 600, 249 N.E.2d 450, 452, Supra). However, in a footnote to its opinion, the Court of Appeals added that it was not then determining whether appellant would be entitled to a post-conviction hearing on the factual circumstances attending his arrest (Ibid., n. 6). Thus, we are now presented with the instant proceeding for Coram nobis relief.

In our view, appellant is precluded from raising the issue as to the admissibility of the fingerprint evidence in this Coram nobis proceeding. He has forfeited that right by failing to raise the constitutional question in the trial court and then to test any adverse ruling on appeal from the judgment (see People v. De Mino, 35 A.D.2d 979, 317 N.Y.S.2d 929; People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113, cert. den. 374 U.S. 840, 83 S.Ct. 1893, 10 L.Ed.2d 1060; cf. Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 22 L.Ed.2d 227; United States ex rel. Tarallo v. LaVallee, 2 Cir., 433 F.2d 4; People...