Appeal from an order of the Supreme Court, Clinton County, dismissing relator’s petition for a writ of habeas corpus. Relator was convicted of felonious posses
Page 875
sion of narcotic drugs and felonious possession of narcotic drugs with intent to sell and sentenced on December 10, 1957 to two concurrent terms of five to eight years each. No appeal was taken from these convictions and sentences. Relator now seeks his freedom on the grounds that the evidence upon which he was convicted was inadmissible since it was obtained in violation of the Fourth Amendment of the United States Constitution (Mapp v. Ohio, 367 U. S. 643). However, even assuming that the conviction rested upon erroneously received evidence, since the petition clearly indicates that relator’s time to appeal had expired prior to the decision in Mapp, relator is not entitled to a reversal of his conviction by habeas corpus or otherwise (People v. Muller, 11 N Y 2d 154; People v. Loria, 10 N Y 2d 368; People ex rel. Sullivan v. Fay, 16 A D 2d 823). Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ.