Opinion
July 10, 1967
Judgment of the Supreme Court, Westchester County, dated June 3, 1966, dismissing a writ of habeas corpus affirmed, without costs. On January 22, 1963, relator was convicted in the Supreme Court, New York County, of attempted rape in the first degree, burglary in the first degree, and assault in the third degree. At the trial a screwdriver, allegedly obtained by the People as the result of an illegal search and seizure, was marked for identification and referred to during the trial and in summation by the District Attorney. No objection was made at the trial to the testimony or the summation. The judgment was affirmed on appeal to the Appellate Division, First Department ( 20 A.D.2d 758). In our opinion, habeas corpus to test the alleged erroneous references at the trial to the screwdriver is not presently available to relator for several reasons: (1) no motion had been made by defendant before or during the trial to suppress the evidence allegedly illegally seized, which failure operated as a waiver of any objection to the admissibility of the evidence (Code Crim. Pro., § 813-d); (2) no objection was made at the trial to either the testimony or the summation, thereby waiving the right to raise the issue thereafter ( People v. McQueen, 18 N.Y.2d 337, 344); (3) relator's present claim that his constitutional rights were violated was argued and overruled on his appeal from the judgment; and (4) relator was not deprived of any fundamental constitutional or statutory right sufficient to permit the present claim that habeas corpus was proper ( People ex rel. Keitt v. McMann, 18 N.Y.2d 257). Beldock, P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.