Leogrande v. State Liquor Authority
| Citation | 19 N.Y.2d 418,280 N.Y.S.2d 381,227 N.E.2d 302 |
| Parties | , 227 N.E.2d 302 In the Matter of Frank LEOGRANDE, Jr., Respondent, v. STATE LIQUOR AUTHORITY of the State of New York, Appellant. |
| Decision Date | 20 April 1967 |
| Court | New York Court of Appeals Court of Appeals |
Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Brenda Soloff, New York City, of counsel), for appellant.
Arnold E. Wallach, New York City, for respondent.
William P. Sirignano, Mount Vernon, and Irving Malchman, New York City, for Waterfront Commission of New York Harbor, amicus curiae.
The petitioner's restaurant liquor license for premises in the Bronx has been cancelled by the State Liquor Authority on charges that petitioner on several occasions had 'suffered or permitted gambling on the licensed premises' and that his 'conduct' was of such a nature as to warrant revocation.
It is not disputed that if all the evidence before the Authority were properly admissible, there would be fully adequate ground to cancel the liquor license. But substantial parts of the evidence obtained were either seized in pursuant of search warrants which were subsequently vacated by the court which issued them; or were the observations made by police in the course of executing the search warrants.
There was, however, no specific objection made at the hearings to the receipt of the evidence on the ground the warrants had been vacated and that the evidence was obtained in violation of petitioner's rights; and not until after the decision adverse to petitioner was rendered by the Authority was the issue of a 'violation of the licensee's rights under the Fourth and Fourteenth Amendments to the Federal Constitution' raised.
Two hearings were conducted, one addressed to a period in 1963, the other to a period in 1964, in which evidence was obtained under separate search warrants. There was no objection whatever made at the first hearing by the licensee to reception of evidence taken or observed in the course of the execution of that search warrant, and at the second hearing there was no objection made on the ground the evidence was obtained in violation of the licensee's constitutional rights under the second search warrant.
At the end of the first hearing counsel for the licensee said that he would make the to dismiss the charges 'on the grounds that the evidence is insufficient and uncorroborated'. There is no suggestion in this that the licensee was asserting to the Authority that his constitutional rights had been invaded and that on this ground the evidence could not be received.
Nor is any suggestion of this kind made when the proof resulting from the execution of the second search warrant was offered. When the policy slips seized by police under that search warrant were offered, counsel for the licensee said he was going to object to their receiption. He proceeded to question the officer 'on the legitimacy' of the evidence as to what 'these slips pretend to represent'.
He then inquired whether the slips were taken in pursuance of a search warrant 'which you had' and whether the warrant 'did not relate to any horse racing at all'. The next question was whether the evidence had been 'improperly obtained'. The policeman answered that the warrant 'was controverted in court'.
There followed at once a statement by the attorney for the licensee which makes it clear what he meant by 'evidence' that was 'improperly obtained'. He said flatly: 'The search warrant you had had no relationship at all to any alleged horse betting.'
No Judge and no hearing officer would reasonably be expected to infer from anything said by licensee's counsel that there was any objection on constitutional grounds to the admission of this evidence. In respect of the first warrant to which there was no objection of any kind made, the police...
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Ralph Martinez, In re
...Leogrande v. New York State Liquor Authority (1966) 25 A.D.2d 225, 268 N.Y.S.2d 433, rev'd on other grounds, 19 N.Y.2d 418, 280 N.Y.S.2d 381, 227 N.E.2d 302 (1967) (Breitel, J.) (Fourth Amendment exclusionary rule applied to liquor license revocation proceeding); cf. In re Marsh (Ill.1968) ......
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...996, 218 N.E.2d 703; Matter of Leogrande v. State Liq. Auth., 25 A.D.2d 225, 268 N.Y.S.2d 433, revd. on other grounds 19 N.Y.2d 418, 280 N.Y.S.2d 381, 227 N.E.2d 302.) In the Plymouth Sedan case (380 U.S. 693, 85 S.Ct. 1246, Supra)--a civil forfeiture suit brought to confiscate an automobil......
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...hearing, the issue of the admissibility of evidence is not preserved for our review. (Matter of Leogrande v. State Liq. Auth., 19 N.Y.2d 418, 424, 280 N.Y.S.2d 381, 383, 227 N.E.2d 302, 303.) A more difficult problem is presented by the admission in evidence, over objection, of the results ......