
    The People of the State of New York ex rel. John Sullivan, Appellant, v. Edward M. Fay, as Warden of Green Haven Prison, Respondent.
   —In a habeas corpus proceeding, relator appeals from an order of the Supreme Court, Dutchess County, made October 23,1961, after a hearing, which dismissed the writ and remanded him to custody of respondent. Order affirmed. Defendant seeks to obtain his release from imprisonment under a judgment duly rendered in 1954 after trial. In support of his writ, the defendant invoked the rule in Mapp v. Ohio (367 U. S. 643), i.e., that evidence obtained by unlawful search and seizure in violation of the Fourth Amendment of the United States Constitution is inadmissible in a State court criminal trial. His petition states facts purporting to establish that the evidence received upon the trial and upon which he was convicted had been so obtained. It appears upon the face of the petition, however, that defendant’s conviction and its affirmance on appeal (People v. Sullivan, 1 A D 2d 767) both occurred prior to the decision in Mapp v. Ohio (supra); and that, prior to the writ issued in this proceeding, his time to appeal further had expired. Under such circumstances, defendant is not entitled to a reversal of his conviction by habeas corpus or otherwise, even assuming that the conviction rests upon evidence erroneously received (People v. Muller, 11 N Y 2d 154). Beldock, P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.  