Opinion
Argued January 22, 1963
Decided April 4, 1963
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, MARTIN SCHENCK, J.
John T. Garry, II, District Attorney ( Condon A. Lyons of counsel), for appellant.
Bernard Ellenbogen for respondent.
Martin F. Richman and Melvin L. Wulf for American Civil Liberties Union, amicus curiae.
Order reversed and judgment of the County Court, Albany County, reinstated upon the ground that, when counsel for defendant voiced "no objection" to the admission into evidence of the material allegedly obtained contrary to the principles enunciated in Mapp v. Ohio ( 367 U.S. 643), no question of law was preserved for review by any appellate court ( People v. Friola, 11 N.Y.2d 157; People v. Kelly, 12 N.Y.2d 248). Although the Appellate Division is empowered to consider the legality of the evidence in deciding whether to reverse on the facts or in the "interests of justice" (see People v. Kelly, supra), that court has indicated in the present case that "Except for the asserted question of law [it] would have affirmed on the facts". Other alleged errors raised by defendant on this appeal are without substance. No opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, FOSTER and SCILEPPI.