People v. Lifrieri

• Decision Date: 26 March 1993
• Parties: PEOPLE of the State of New York, v. Demetrio LIFRIERI, Defendant.
• Court: New York Supreme Court

Page 580

597 N.Y.S.2d 580

157 Misc.2d 598

PEOPLE of the State of New York, v. Demetrio LIFRIERI, Defendant.

Supreme Court, Criminal Term Kings County, Part 22.

March 26, 1993.

Arthur Miller, for defendant.

Stephen McCarthy, Jr., for Charles J. Hynes, District Attorney.

KREINDLER, Justice.

Defendant moves to dismiss the indictment on the ground that the indictment was obtained using information given to police by his spouse in violation of the spousal communication privilege (CPLR 4502[b]. In the alternative, defendant moves for suppression of evidence seized as a result of the privileged communication. Defendant moves for identical relief on the ground that the indictment was procured with the benefit of information gathered by police in violation of the attorney-client privilege (CPLR 4503).

In deciding the instant motion, the court considered defendant's moving papers and the People's responses.

Defendant alleges that while he was a "prime suspect in the disappearance of two women", the police interviewed his estranged wife and his attorney, who had apparently represented the couple in the purchase of the marital home some years earlier. The information obtained via the interview purportedly provided the police with a "motive" for defendant's involvement in the disappearance of the two women.

Despite the vague and conclusory nature of defendant's allegations, the court will assume: 1) that there was a confidential communication which was divulged to the police, and 2) that the information derived from the communication was used by police in its investigation of defendant and subsequent discovery of the homicide victims.

I. PRIVILEGE

Privileges are in essence rules of exclusion. Unlike most exclusionary rules which tend to guard against the admission of evidence of low probative force or of proof calculated to mislead or prejudice, privileges are designed to protect relationships deemed socially desirable (see, People v. Melski, 10 N.Y.2d 78, 83, 217 N.Y.S.2d 65, 176 N.E.2d 81; see also, Fisch on New York Evidence [2d ed.], § 511). The maintenance of privileges often causes the exclusion of much valuable evidence. However, the Legislature deems the social benefit derived from the protected relationship to outweigh the harm that results from exclusion (id.; see also, Fisch on New York Evidence [2d ed.], § 511, supra ).

The marital privilege developed historically from the common law rule which completely disqualified a wife from testifying for or against her husband. She was held to be incompetent because spouses were considered as a single entity and, therefore, interested in the outcome of the litigation in which the other spouse was a direct party. At common law, interested witnesses were deemed disqualified from testifying (see, Croker v. New York Trust Co., 245 N.Y. 17, 20, 156 N.E. 81). The privilege was also deemed necessary to avoid subjecting domestic tranquility to the disturbance which was thought to flow from a spouse giving adverse testimony against the other (People v. Rodriguez, 38 N.Y.2d 95, 99, 378 N.Y.S.2d 665, 341 N.E.2d 231; citing, 1 Coke, Commentary upon Littleton [19th ed. 1832], § 6b; 2 Kent Commentaries 179).

CPLR 4502

CPLR 4502(b) reads as follows:

"(b) Confidential communication privileged. A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage."

The underlying rationale for the creation of the marital privilege by the Legislature as codified today was: (1) to encourage husbands and wives to share confidences by the assurance that they would not be divulged in legal proceedings (see, Poppe v. Poppe, 3 N.Y.2d 312, 165 N.Y.S.2d 99, 144 N.E.2d 72; People v. Daghita, 299 N.Y. 194, 86 N.E.2d 172), and (2) to avoid the "feeling of indelicacy and want of decorum" ( Prink v. Rockefeller Center, 48 N.Y.2d 309, 318, 422 N.Y.S.2d 911, 398 N.E.2d 517) that would arise from requiring a person to condemn or be condemned by his or her spouse, or for prying into the secrets of the marital relation (see, Prink v. Rockefeller Center, 48 N.Y.2d at 318, 422 N.Y.S.2d 911, 398 N.E.2d 517, supra; see also, Prince, Richardson on Evidence, § 447 [10th ed.]; 8 Wigmore, Evidence § 2228 [McNaughton rev. ed.].

(a) Spousal Privilege Outside Trial

In People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466, defendant's spouse summoned the police to the marital residence where she showed the officers a shotgun and some marijuana she claimed belonged to defendant. When defendant returned to the apartment, the police arrested him and a search of his person yielded a vial of LSD.

The court found that the disclosure by defendant's wife was not privileged, but even if privileged, relates to "testimonial privilege and not a universal 'gag' rule" (People v. Scull, 37 N.Y.2d at 834, 378 N.Y.S.2d 30, 340 N.E.2d 466, supra ). The court, in dicta, held that spousal privilege relates to testimony, not to communications between spouses occurring in a non-testimonial setting.

In People v. Kemp, 59 A.D.2d 414, 399 N.Y.S.2d 879, the police responded to a domestic violence call and were led to the couple's apartment by defendant's wife. Defendant's wife then removed drug cutting equipment and some marijuana and gave it to police. Upon the police placing defendant under arrest, he surrendered several packets of cocaine. A search of the apartment by police resulted in the seizure of gambling slips.

Applying the court's holding in Scull, the court held that the marital privilege did not apply to a suppression hearing or to a wife's disclosure of physical evidence to police (id., at 421, 399 N.Y.S.2d 879). This was so even though the wife could be barred at trial from so testifying to privileged communications.

The court found that the "[marital] privilege is testimonial, obtaining full impact at trial" and would be inappropriately applied in the context of a suppression hearing (People v. Kemp, 59 A.D.2d at 420, 399 N.Y.S.2d 879, supra ). The court noted that the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before a judge to determine the admissibility of evidence (id. at 419-420, 399 N.Y.S.2d 879, citing, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879). "[I]t is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals" (People v. Kemp, 59 A.D.2d at 421, 399 N.Y.S.2d 879, supra, citing, Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564).

Several trial courts in New York have found the marital privilege inapplicable outside of the trial context (People v. Le Grand, 84 Misc.2d 985, 379 N.Y.S.2d 269; People v. Helmus, 50 Misc.2d 47, 269 N.Y.S.2d 613; see also, People v. Andreas, N.Y.L.J., July 20, 1987, at 15, col. 6).

The Federal courts have held that statements of a spouse that would be privileged at trial can nonetheless be used to establish probable cause to obtain a search warrant or investigate a suspect based upon such communications (United States v. Cleveland, 7th Cir., 477 F.2d 310; United States v. Harper, 5th Cir., 450 F.2d 1032; and United States v. Winfree, 170 F.Supp. 659). In essence, the Federal courts held that the spousal privilege is applicable in the trial context only and has limited application outside that context (id.; see also, United States v. Tsinnijinnie, 9th Cir., 601 F.2d 1035 [third party permitted at trial to testify to out-of-court utterance of privileged communication of defendant spouse]; and State v. Burden, 120 Wash.2d 371, 841 P.2d 758).

Several state courts outside New York have held that the Fourth Amendment does not bar the use of privileged communications as a basis for a finding of probable cause to search (see, Muetze v. State, 73 Wis.2d 117, 243 N.W.2d 393; see also, State v. Kunkel, 137 Wis.2d 172, 404 N.W.2d 69; State v. Bonaparte, 34 Wash.App. 285, 660 P.2d 334; State v. Diana, 24 Wash.App. 908, 604 P.2d 1312; State v. Osborne, 18 Wash.App. 318, 569 P.2d 1176; State v. Crevina, 110 N.J.Super. 571, 266 A.2d 319; and State v. Schifsky, 243 Minn. 533, 69 N.W.2d 89). These decisions support the principle that there is no Fourth Amendment prohibition against using privileged communication as a basis for a finding of probable cause to search (Muetze v. State, 73 Wis.2d 117, 243 N.W.2d 393, 397, supra ).

The purported use of privileged communication in the furtherance of an investigation and/or to obtain probable cause in the case at bar, did not violate defendant's constitutional right to be free from unreasonable search and seizure.

(b) Violation of CPLR 4502(b)

Assuming the statute governing spousal communication was violated in the case at bar, the question remains as to whether such violation would result in the suppression of the "fruits" of such a search.

The violation of a statute by law enforcement will not necessarily result in suppression of the fruits of such violation (People v. Patterson, 78 N.Y.2d 711, 579 N.Y.S.2d 617, 587 N.E.2d 255 [violation of CPL 160.50 does not warrant suppression of identification]; People v. Sampson, 73 N.Y.2d 908, 539 N.Y.S.2d 288, 536 N.E.2d 617 [violation of Vermont's "fresh pursuit statute" does not mandate suppression]; People v. Harris, 48 N.Y.2d 208, 216, 422 N.Y.S.2d 43, 397 N.E.2d 733 [suppression not warranted where defendant's statutory rights, as opposed to constitutional rights, were violated]; and People v. Bialostok, 80 N.Y.2d 738, 594 N.Y.S.2d 701, 610 N.E.2d 374 [violation of CPL 700.50(3) requiring written notice of wiretap does not necessitate suppression]. It is only where a constitutionally-protected right is implicated (e.g., People v. Taylor, 73 N.Y.2d 683, 543 N.Y.S.2d 357, 541 N.E.2d 386; People v Gallina, 66 N.Y.2d 52, 495 N.Y.S.2d 9, 485 N.E.2d 216...