
    The People of the State of New York, Respondent, v. Vincent Friola, Appellant.
    Argued March 26, 1962;
    decided April 5, 1962.
    
      Michael S. Washor for appellant.
    I. This court should consider the admissibility of evidence in the absence of objection at the trial wherein said evidence was secured in violation of appellant’s constitutional rights under the Fourth Amendment. (Mapp v. Ohio, 367 U. S. 643; People v. Loria, 10 N Y 2d 368; People v. Defore, 242 N. Y. 13; People v. Savage, 5 A D 2d 846; People v. Nixon, 248 N. Y. 182; People v. Mahoney, 280 App. Div. 816; People v. Bilski, 274 App. Div. 1006; People v. Hull, 12 A D 2d 815; People v. Di Cupillo, 271 App. Div. 1032; People v. Driscoll, 107 N. Y. 414; People v. Burgess, 153 N. Y. 561; People v. Stiglin, 238 App. Div. 407; Johnson v. Zerbst, 304 U. S. 458.) II. The People’s evidence was secured in violation of appellant’s constitutional rights under the Fourth Amendment. (Sgro v. United States, 287 U. S. 206; Bell v. Hood, 71 F. Supp. 813; United States v. Lynch, 94 F. Supp. 1011; People v. Jakira, 118 Misc. 303; Adams v. New York, 192 U. S. 585; Abel v. United States, 362 U. S. 217; United States v. Hester, 265 U. S. 57; Wakkuri v. United States, 67 F. 2d 844; Kroska v. United States, 51 F. 2d 330; United States v. Blok, 188 F. 2d 1019; Agnello v. United States, 269 U. S. 20; Taylor v. United States, 286 U. S. 1; Johnson v. United States, 333 U. S. 10; United States v. Jeffers, 342 U. S. 48; Trupiano v. United States, 334 U. S. 699; United States v. Wallace Co., 336 U. S. 793; McDonald v. United States, 335 U. S. 451; People v. Glennon, 37 Misc. 1; People v. McCarthy, 188 Misc. 132.)
    
      Edward S. Silver, District Attorney (Raymond J. Scanlan, Jr., David Diamond and Harry Brodbar of counsel), for respondents.
    I. This court is without jurisdiction to consider whether the evidence upon which the conviction rests was obtained as a result of an unreasonable search and seizure. (People v. Pindar, 210 N. Y. 191; People v. Nixon, 248 N. Y. 182; People v. Steinmetz, 240 N. Y. 411; People v. Bresler, 218 N. Y. 567; People v. Huson, 187 N. Y. 97; Slatterly v. People, 58 N. Y. 354; People v. Piazza, 15 A D 2d 503; People v. Sherlock, 166 N. Y. 180; People v. Cahan, 44 Cal. 2d 434.) II. Since the crime in question was committed in the presence of the arresting officer, a search of the premises incidental to such arrest was proper. (Buckner v. United States, 164 F. Supp. 836, 268 F. 2d 891, 359 U. S. 908; McDonald v. United States, 335 U. S. 451; Whitley v. United States, 237 F. 2d 787; United States v. Hayden, 140 F. Supp. 429; Beedenbender v. Midtown Props., 4 A D 2d 276; Littke v. State, 97 Okla. Cr. 78; Abel v. United States, 362 U. S. 217; United States v. Hester, 265 U. S. 58; Wakkuri v. United States, 67 F. 2d 844; Kroska v. United States, 51 F. 2d 330; United States v. Blok, 188 F. 2d 1019; Agnello v. United States, 269 U. S. 20; Taylor v. United States, 286 U. S. 1 ; Johnson v. United States, 333 U. S. 10; United States v. Jeffers, 342 U. S. 48; Trupiano v. United States, 334 U. S. 699; United States v. Rabinowitz, 339 U. S. 56; United States v. Setaro, 37 F. 2d 134; United States v. Wallace Co., 336 U. S. 793.)
   Froessel, J.

In a trial which took place before the decision of the Supreme Court of the United States in Mapp v. Ohio (367 U. S. 643) on June 19, 1961, defendant was convicted in City Magistrates’ Court of having violated sections 986 and 986-b of the Penal Law. After the Mapp decision, and on December 27, 1961, the convictions were affirmed, without opinion, by the Appellate Part of the Court of Special Sessions. On this appeal by permission of a Judge of this court, defendant contends that the evidence upon which he was convicted was obtained by unlawful search and seizure.

We do not reach the question of the alleged illegality of the search and seizure, for in our opinion no question of law has been preserved for our review. In this case, unlike People v. Loria (10 N Y 2d 368), no objection was taken on constitutional grounds to the introduction of the allegedly illegally obtained evidence. And unlike People v. O’Neill (11 N Y 2d 148) and People v. Coffey (11 N Y 2d 142), decided herewith, the present record is utterly barren as to any inquiry by defense counsel with regard to the lawfulness of the alleged search and seizure, by means of which inquiry, or at least some effort in that direction, defendant might have preserved the question for our review, as the statute requires (Code Crim. Pro., § 420-a). Indeed, illegality was not even suggested, and defendant did not merely fail to object, but expressly stated that he had no objection to the admissibility of such evidence. People v. Nixon (248 N. Y. 182) is clearly inapt here.

Confronted with a kindred situation, the Court of Appeals of Maryland in Shorey v. State (227 Md. 385, 177 A. 2d 245, 247), refused to consider appellant’s contention with respect to an allegedly illegal search and seizure which took place on May 28, 1960, stating: “ [T]he complete answer is that there was no objection in the trial court on the ground of illegal arrest. Young v. State, 220 Md. 95, 99, 151 A. 2d 140, cert. den. 363 U. S. 853, 80 S. Ct. 1634, 4 L. Ed. 2d 1735. Nor was there any objection to the introduction in evidence of the articles of clothing. [Citations omitted.] The majority opinion in the Mapp case seems to recognize (367 U. S. p. 659, 81 S. Ct. p. 1684 note 9) that State procedural requirements to raise or preserve the question may still be respected, even where it is claimed that the Fourteenth Amendment is violated by the introduction of illegally obtained evidence in a State prosecution.” (See, also, Green v. Maryland, 227 Md. 296.)

We reach the same result as did the California Supreme Court in cases following that court’s decision in People v. Cahan (44 Cal. 2d 434) in which the then Federal exclusionary, rule was adopted. In People v. Kitchens (46 Cal. 2d 260) one of the police officers involved was asked on cross-examination “ whether he had a search warrant, a warrant for defendant’s arrest, or any doubt when he entered the apartment and searched defendant that defendant ‘ was responsible for having possession of marijuana ’ and a prosecution objection on the ground of irrelevancy to each question was sustained ” (p. 262). Under those circumstances, in an opinion written by Judge Traynor, the court held that it would review the admissibility of evidence although “proper objection” had not been made in the trial court.

Then in People v. Farrara, (46 Cal. 2d 265, 268) Judge Traynor distinguished People v. Kitchens (both pre-Cahan trials), and held that where “no objection was made to the introduction of the evidence in the trial court, and no evidence was presented for the purpose of showing whether or not the officers acted lawfully ’ ’, the court would not entertain the question of alleged illegal search and seizure. Farrara was expressly followed in People v. Beard (46 Cal. 2d 278, 280) and in People v. Citrino (46 Cal. 2d 284, 287) and approved in Badillo v. Superior Court (46 Cal. 2d 269, 272).

The judgment appealed from should be affirmed.

Van Voorhis, J. (concurring).

I concur in the opinion by Judge Froessel.

It was well known before Mapp v. Ohio (367 U. S. 643) was decided that Wolf v. Colorado (338 U. S. 25) and People v. Defore (242 N. Y. 13) had been widely criticized, and Bench and Bar expected that their doctrines would be reviewed and possibly overruled. That is the reason on account of which the issue was presented to the Supreme Court in Mapp v. Ohio after adequate objection had been made at the trial of that case. Courts are continually reconsidering old precedents and, if no objection or equivalent was required here, objection would never be necessary to raise a question of law where it is urged that some former decisional law be changed. That would not accord with the purposes of the rule requiring an objection, which is to apprise the court and the adversary of the position being- taken when the ruling is made. It is important to know at the time that rulings are being challenged so that additional evidence or argument may be presented and the point considered by the trial court with knowledge that the rule is being contested.

Chief Judge Desmond (dissenting).

In People v. Loria (10 N Y 2d 368, 370 [Nov. 30, 1961]), adhering to the “general rule that we give effect to the law as it exists at the time of our decision ” and citing Knapp v. Fasbender (1 N Y 2d 212, 243) and other authorities, we held that we were bound to apply Mapp v. Ohio (367 U. S. 643) to pending appeals in this court. We are repeating that same statement of law in People v. Muller (11 N Y 2d 154), handed down today. Yet in the present case we are creating an unfair, illogical and inconsistent limitation of the “ general rule ”. We are now saying that we will not apply the new law in a pre-Mapp case unless on the trial the defendant’s counsel did what was then futile, unreasonable and contrary to the then law, that is, object to the admission of testimony which under the unquestioned New York law and Federal law (People v. Defore, 242 N. Y. 13, cert. den. 270 U. S. 657; Wolf v. Colorado, 338 U. S. 25) was clearly admissible. So the client whose counsel took a groundless objection gets the benefit of the later (Mapp) change in law while the client whose lawyer refrained from mouthing a meaningless objection is prejudiced because his lawyer took the correct position.

So restricted an application of the general rule giving a suitor the benefit of a change in law ignores the rationale of the general rule. “It is in general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied ” (United States v. Schooner Peggy, 1 Cranch [5 U. S.] 103,110, quoted in Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271, 281). We are here “ denying ” the law of Mapp (supra) in a case in which, as we shall show, Mapp is clear authority for a reversal.

There is nothing in New York law which says that we are deprived of jurisdiction by the absence of an objection. Neither the Constitution nor any statute raises such a bar. An objection is ordinarily made by a party to call the court’s attention to a point of existing law and, in the event of its being overruled, to preserve for the appellate court “ the question of law that he hopes thereafter to review in [that] court” (People v. Bresler, 218 N. Y. 567, 573). The requirement of an objection is waived when “ justice and fairness ” so dictates (People v. Nixon, 248 N. Y. 182, 189). Surely this is a case for such a waiver. This court should not put itself in the position of insisting on an objection to call attention to a “ question of law ” which did not exist at the time.

Since the majority decline to examine into the real question presented by the appeal, we dissenters will not give it extended treatment. The officer who presented the offending evidence obtained it by a trespass. He had stationed himself on an upper landing of a fire escape outside defendant’s apartment and heard conversations interpreted as connected with gambling-activities. His presence was a violation of defendant’s rights to privacy in his home and “ curtilage ” (Kroska v. United States, 51 F. 2d 330; Wakkuri v. United States, 67 F. 2d 844; United States v. Blok, 188 F. 2d 1019; see Watchtower Bible & Tract Soc. v. Metropolitan Life Ins. Co., 297 N. Y. 339, 348). Evidence seized by means of a trespass is inadmissible under the Fourth Amendment (Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Johnson v. United States, 333 U. S. 10).

The judgment should be reversed and the information dismissed.

Judges Dye, Burke and Foster concur with Judge Froessel; Judge Van Voorhis concurs with Judge Froessel in a separate opinion in which Judges Dye, Froessel, Burke and Foster concur; Chief Judge Desmond dissents in an opinion in which Judge Fuld concurs.

Judgment affirmed.  