New York Court of Appeals, 1963

People v. Kelly

New York Court of Appeals · Decided February 28, 1963 · Desmond

12 N.Y.2d 248; 189 N.E.2d 477; 238 N.Y.S.2d 934; 1963 N.Y. LEXIS 1349

Cases that cite this one

23 later published cases cite this decision.

State v. Edge (N.J. Super. Ct. App. Div. 1970)
United States v. Thomas (District Court, S.D. New York 1968)
United States ex rel. Mishkin v. Thomas (District Court, S.D. New York 1968)
United States ex rel. Walker v. Follette (District Court, S.D. New York 1967)
Terry v. Denno (District Court, S.D. New York 1966)
United States ex rel. Eidenmuller v. Fay (District Court, S.D. New York 1965)
United States of America Ex Rel. James P. Carafas v. J. Edwin Lavallee, Warden, Auburn Prison, Auburn, New York (2d Cir. 1964)
United States ex rel. Ricco v. LaVallee (District Court, N.D. New York 1964)
United States ex rel. Carafas v. Murphy (District Court, N.D. New York 1963)
United States ex rel. West v. LaVallee (District Court, N.D. New York 1963)
Commonwealth Ex Rel. Wilson v. Rundle (Pa. 1963)
People v. Bryce (Appellate Division of the Supreme Court of New York 2001)
People v. Keller (Appellate Division of the Supreme Court of New York 1979)
People v. Artis (Appellate Division of the Supreme Court of New York 1979)
People v. Dickerson (Appellate Division of the Supreme Court of New York 1979)
People v. Rivera (Appellate Division of the Supreme Court of New York 1979)
People v. Bowen (Appellate Division of the Supreme Court of New York 1978)
People v. Rivera (Appellate Division of the Supreme Court of New York 1978)
People v. Smoot (Appellate Division of the Supreme Court of New York 1977)
People v. Campbell (Appellate Division of the Supreme Court of New York 1977)
People v. Hunt (Appellate Division of the Supreme Court of New York 1976)
People v. Joyner (Appellate Division of the Supreme Court of New York 1976)
People v. McGill (Appellate Division of the Supreme Court of New York 1975)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Chief Judge Desmond.

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) that the exclusionary doctrine of Mapp v. Ohio (367 U. S. 643) 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 *250exception 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); People v. O’Neill (11 N Y 2d 148), and People v. Friola (11 N Y 2d 157) 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 court is not precluded from taking into consideration the circumstance that illegal evidence was taken.

Since the reversal here was soundly based on grounds within the intermediate appellate court’s competence, we affirm.,

Judges Dye, Fuld, Van Voorhis, Burke, Foster and Scileppi concur.

Order affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.