People v. Kelly

• Decision Date: 28 February 1963
• Citation: People v. Kelly, 12 N.Y.2d 248, 238 N.Y.S.2d 934, 189 N.E.2d 477 (N.Y. 1963)
• Parties: , 189 N.E.2d 477 The PEOPLE of the State of New York, Appellant, v. Martin KELLY and Howard Koenig, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 934

238 N.Y.S.2d 934

12 N.Y.2d 248, 189 N.E.2d 477

The PEOPLE of the State of New York, Appellant, v. Martin KELLY and Howard Koenig, Respondents.

Court of Appeals of New York.

Feb. 28, 1963.

Frank D. O'Connor, Dist. Atty. (Benj. J. Jacobson, Long Island City, of counsel), for appellant.

Sidney G. Sparrow, Kew Gardens, and Robert E. Sparrow, Jamaica, for respondents.

DESMOND, Chief Judge.

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, 223 N.Y.S.2d 462, 179 N.E.2d 478) that the exclusionary doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 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 exception 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, 227 N.Y.S.2d 412, 182 N.E.2d 92; People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95, and People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100, 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 ...