People v. LaPlanche

Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620 ), was sufficient to support the conviction and the verdict was not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490 , 495).

However, County Court’s instructions to the jury on reason

Since a new trial is necessary, we note that, on the evidence in this record, the court erred in denying defendant’s request for a circumstantial evidence charge (see, People v Silva, 69 NY2d 858 , 859; People v Ford, 66 NY2d 428 ; People v Sanchez, 61 NY2d 1022 ).

The court properly permitted defendant’s wife to testify concerning the time her husband arrived home on the morning of May 14, 1987, as well as her discovery of a duffel bag and its contents later that day, because those observations were not " 'communications’ ” protected by the marital privilege (People v Wilson, 64 NY2d 634 , 636). With respect to the other "communications” that took place over a period of approximately six months to a year, we conclude that, although those communications were presumably privileged when made (see, CPLR 4502 [b]), the privilege was lost because the substance of those communications was revealed to a third party (see, Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66 , 74). (Appeal from Judgment of Niagara County Court, Hannigan, J.—Murder, 2nd Degree.) Present—Callahan, J. P., Green, Lawton, Doerr and Boehm, JJ.