People v. Smith — 124 A.D.2d 757

Majority

p. 757

The People of the State of New York, Respondent, v Edward J. Smith, Appellant.

The defendant contends that a confession which he made during a telephone conversation with his wife should not have been admitted into evidence as it was protected by the marital privilege (CPLR 4502 [b]; CPL 60.10). Although his confession may have been made in reliance upon the trust and confidence of the marital relationship (see, People v Fediuk, 66 NY2d 881 , 883; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66 , 73; People v Fields, 38 AD2d 231 , 233, affd 31 NY2d 713 on opn at App Div), we agree with the hearing court that the defendant waived the protection of the marital privilege

p. 758

(see, People v Melski, 10 NY2d 78 , 81; People v O’Connor, 85 AD2d 92 , 97).

We also find that the defendant’s guilt was established beyond a reasonable doubt upon legally sufficient evidence (see, People v Giuliano, 65 NY2d 766 , 768; People v Malizia, 62 NY2d 755 , 757, cert denied 469 US 932 ). Finally, we find no basis to substitute our discretion for that exercised by the trial court with respect to the defendant’s sentence (see, People v Suitte, 90 AD2d 80 , 86-87). Brown, J. P., Rubin, Lawrence and Kooper, JJ., concur.

Cases cited

People v. Fediuk 66 NY2d 881 N.Y. 1985-11-21 at 883 p. 757
In re Vanderbilt 57 NY2d 66 N.Y. 1982-07-01 at 73 p. 757
People v. Fields 38 AD2d 231 N.Y. App. Div. 1972-02-08 at 233 p. 757
People v. Fields 31 NY2d 713 N.Y. 1972-11-01 p. 757
People v. Melski 10 NY2d 78 N.Y. 1961-06-09 at 81 p. 758
People v. O'Connor 85 AD2d 92 N.Y. App. Div. 1982-02-26 at 97 p. 758
People v. Malizia 62 NY2d 755 N.Y. 1984-05-10 at 757 p. 758
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 at 86-87 p. 758