Summary
In Burton (20 N.Y.2d 797) the court did not reach petitioner's claim that his constitutional rights were violated while here we deal with a determination mandated by a decision of the United States Supreme Court. Bloeth (20 A.D.2d 372) dealt with a purely discretionary order.
Summary of this case from Matter of Saunders v. LupianoOpinion
Submitted September 18, 1967
Decided September 28, 1967
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department.
Leonard F. Walentynowicz for motion.
Michael F. Dillon, District Attorney ( Barbara M. Sims of counsel), opposed.
Motion granted and order resettled to include the following: Cross motion for leave to appeal denied upon the ground that, in the circumstances of this case, petitioner is not entitled to a writ prohibiting his prosecution on the indictment since he has a complete remedy by appeal from a judgment of conviction, if there be one. The Court of Appeals did not on its original motion, nor does it now, reach petitioner's claim that his constitutional rights were violated. The constitutional question may be raised upon an appeal from a judgment of conviction, if there be one.