People v. Ackley

• Decision Date: 09 January 1997
• Citation: 652 N.Y.S.2d 642,235 A.D.2d 633
• Parties: The PEOPLE of the State of New York, Respondent, v. John C. ACKLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 642

652 N.Y.S.2d 642

235 A.D.2d 633

The PEOPLE of the State of New York, Respondent, v. John C. ACKLEY, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 9, 1997.

Robert M. O'Leary, Public Defender (William L. Brown, of counsel), Binghamton, for appellant.

Gerald F. Mollen, District Attorney (Joann Rose Parry, of counsel), Binghamton, for respondent.

Before MERCURE, J.P., and WHITE, YESAWICH, PETERS and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered May 5, 1995, upon a verdict convicting defendant of the crimes of rape in the first degree, sexual abuse in the first degree and rape in the third degree.

Defendant was convicted of rape in the first degree, sexual abuse in the first degree and rape in the third degree. Defendant and the victim, his 14-year-old cousin, both attended a family picnic on July 4, 1993 in the Town of Vestal, Broome County. The victim went to her grandfather's trailer to change out of her wet swimsuit and into dry clothes. Defendant went to the trailer to watch her change, hoping to see her nude. He entered the trailer, forcibly pushed her onto a couch and allegedly fondled and raped her. The incident did not come to the attention of the victim's mother until April 1994. The victim's mother reported the incident to the police, who began an investigation. After defendant made incriminating statements to the police, he was arrested. Defendant was convicted after a jury trial and he now appeals.

Defendant argues that County Court erred in failing to render a decision at the close of the suppression hearing. Initially, as counsel failed to object to this conduct, either before or during trial, this issue is not preserved for our review (see, People v. Terry, 148 A.D.2d 478, 478-479, 538 N.Y.S.2d 626, lvs denied 73 N.Y.2d 1020, 541 N.Y.S.2d 774, 539 N.E.2d 602, 73 N.Y.2d 1022, 541 N.Y.S.2d 777, 539 N.E.2d 605) and we decline to reverse in the interest of justice (see, CPL 470.15[6][a] ). In any event, it is clearly without merit in light of the fact that there was no formal suppression motion before the court. Rather, County Court scheduled a hearing sua sponte after being informed by the People that they intended to introduce oral and written statements made by defendant to investigators. Indeed, at the close of the hearing, defense counsel wrote a letter to the court stating that he had not found "any applicable case law or precedent which would allow for the suppression of [defendant's] prior statements * * *. As such, [defendant] takes no position in this regard " (emphasis supplied). Because there was no pending suppression motion before it, County Court did not err in failing to issue a written decision (see, People v. Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 204 N.E.2d 179).

Defendant also argues that the prosecutor acted improperly in eliciting privileged attorney-client information from defendant during cross-examination. The prosecutor was permitted, over a general objection, to question defendant about instructions he had been given by defense counsel before participating in a psychological stress evaluation (hereinafter PSE). On redirect examination, defense counsel elicited testimony from defendant that defense counsel had never instructed him to lie and that defendant had revealed certain details to defense counsel only recently. On recross-examination, defendant reiterated that he had lied to defense counsel.

The attorney-client privilege, codified in CPLR 4503(a), "enables one seeking legal advice to communicate with counsel for this purpose secure in the knowledge that the contents of the exchange will not later be revealed against the client's wishes" (People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183; see, Matter of Jacqueline F., 47 N.Y.2d 215, 218-219, 417 N.Y.S.2d 884, 391 N.E.2d 967). A defendant who takes the stand in his or her own defense may not be cross-examined concerning statements to his or her attorney (see, People v. Wilkins, 65 N.Y.2d 172, 179, 490 N.Y.S.2d 759, 480 N.E.2d 373; People v. Glenn, 52 N.Y.2d 880, 881, 437 N.Y.S.2d 298, 418 N.E.2d 1316; People v. Ali, 146 A.D.2d 636, 637, 536 N.Y.S.2d 541). We agree with defendant that the advice he was given by his attorney regarding his behavior during the PSE clearly fell within the scope of the attorney-client privilege. It was therefore error for the prosecutor to attempt to elicit this information on cross-examination.

We conclude, however, that this error is harmless, as there is no "significant probability * * * that the jury would have acquitted the defendant" if this error had not occurred (People v. Crimmins, 36...