People v. Boodie

Per Curiam. Defendant appeals from a judgment convicting him of manslaughter, first degree, after trial on an indictment charging homicide, second degree. The verdict is sustained by proof beyond a reasonable doubt of the defendant’s guilt. Defendant contends his post-arraignment admissions were improperly introduced and the prosecution improperly referred to a knife not in evidence. Defendant was apprehended for felonious assault on February 27, 1960; on March 7, 1960 he was examined by a prosecutor and his stenographic statement taken. On March 8, 1960 defendant was indicted for homicide, second degree. The Medical Examiner testified two stab wounds caused by a sharp instrument, like a knife, were inflicted on the deceased. On the day of the occurrence a freshly cleaned knife was found on the top shelf in defendant’s bedroom closet. The knife was marked for identification and became the subject of examination and comment by the prosecution and examination in behalf of the defense, but was not offered in evidence. On the trial defendant was confronted with his pretrial statement that all knives and forks were kept in his kitchen and denying that the knife was in his bedroom. We assume, but do not decide, the defendant’s statement to the prosecution after his arrest on the complaint for felonious assault and before his indictment for homicide, second degree, on proper objection, was inadmissible. (See People v. Rodriguez, 11 N Y 2d 279.) However, defendant by his omission to object to the introduction of his post-arraignment admissions failed to preserve, as a matter of right, the legal grounds first presented on this appeal for their exclusion. (People v. Huson, 187 N. Y. 97; People v. Washor, 196 N. Y. 104; People v. Fisher, 223 N. Y. 459, 465; People v. Nixon, 248 N. Y. 182; People v. Friola, 11 N Y 2d 157; People v. Wilson, 16 A D 2d 207.) Defendant also failed to object to the testimony relating to the knife; contrariwise, defendant participated in the examination concerning it. Moreover, we find no error in the admission of said evidence or the prosecutor’s comments thereon. (People v. Del Vermo, 192 N. Y. 470; People v. Williams, 260 App. Div. 1024, affd. 285 N. Y. 728.) The verdict is in accord with the evidence. On this record we are not moved to consider questions of law not raised at the time of trial. (People v. Huson, supra; People v. Yui Kui Chu, 273 N. Y. 191, 199.) The judgment of conviction should be affirmed.