Opinion
June 27, 1966
Appeal by defendant from a judgment of the County Court, Dutchess County, rendered July 14, 1965, convicting him of burglary in the second degree, assault in the second degree (two counts), grand larceny in the first degree (two counts) and burglary in the third degree, upon a jury verdict, and imposing sentence upon him as a third felony offender on the burglary counts. Judgment modified, on the law and the facts, by setting aside the verdict and conviction on the third count of the indictment, charging assault in the second degree in resisting arrest, and by dismissing said count. As so modified, judgment affirmed. In our opinion, defendant's guilt of the crime alleged in the third count was not established beyond a reasonable doubt. However, there was ample proof of guilt of the other crimes charged; and we find no prejudicial error in the court's charge, to which defendant took no exception. We are also of the opinion that defendant is in no position to complain on appeal of an alleged unlawful search and seizure. No motion was made prior to trial, as required by section 813-d of the Code of Criminal Procedure, nor did it appear that defendant came within any of the exceptions to that requirement as therein provided (cf. People v. McCall, 19 A.D.2d 630). In any event, we hold that defendant's arrest without a warrant was lawful, as the police officers had probable cause to make the arrest, and that the search and seizure were valid as incident thereto (cf. People v. Glover, 17 N.Y.2d 429; People v. Teams, 20 A.D.2d 803). We are also of the opinion that defendant's bloodstained trousers, lying in open view at the time of his arrest, were properly subject to seizure (cf. Abel v. United States, 362 U.S. 217; Morton v. United States, 147 F.2d 28, cert. den. 324 U.S. 875; United States v. Guido, 251 F.2d 1, cert. den. 356 U.S. 950; Robinson v. United States, 283 F.2d 508, cert. den. 364 U.S. 919; People v. Chiagles, 237 N.Y. 193, 196-197). Defendant's other contentions have been examined and we find no reversible error presented therein. Beldock, P.J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.