People v. Borcsok

Decision Date19 February 1985
Citation485 N.Y.S.2d 766,107 A.D.2d 42
PartiesThe PEOPLE, etc., Respondent, v. Bela BORCSOK, Appellant.
CourtNew York Supreme Court — Appellate Division

Michael F. Sirignano, White Plains, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Terry Jane Ruderman and Gerald D. Reilly, White Plains, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, GIBBONS and BROWN, JJ.

GIBBONS, Justice.

On April 17, 1981, the lifeless body of David Moriarty was found half submerged in a pond located next to the Sprain Brook Parkway in Yonkers, New York. The apparent instrument of death, a blood-stained hammer, was recovered nearby. During the course of the ensuing investigation, a Westchester County detective, Kenneth Cowan, located a witness named Stephen Crowley, who related to him a statement allegedly made by the defendant at or about the time of the murder, in which the latter claimed to have held the decedent down while another individual, Jordan Marcus, struck him repeatedly with a hammer until he was dead. Armed with this information, the defendant and Marcus were promptly arrested and charged with the instant crime.

Shortly thereafter, a felony hearing was held in the Yonkers City Court, at which the defendants and their respective attorneys were all in attendance. Also in attendance was Detective Sergeant Kenneth Zajac of the Westchester County Police Department, who had been assigned to transport the prisoners to Yonkers for the hearing and who was present in the courtroom to provide security. Seated four to six feet behind the codefendants, Zajac was present in the courtroom during the testimony of Stephen Crowley, and when the latter recounted defendant's version of the incident, he saw Marcus look directly at the defendant, who was seated next to him, and say "You told him that", to which the defendant responded by nodding his head in the affirmative.

Defendant's motion to suppress the potential testimony of Detective Zajac regarding this communication was thereafter denied, the motion court holding that Zajac "unavoidably conversations between the defendants and saw their respective conduct, which spontaneously occurred in reaction to Crowley's testimony. There is not the slightest evidence of any police misconduct". Zajac later testified for the People at trial, following which the defendant was convicted, inter alia, of murder in the second degree. This appeal followed.

We affirm.

In our view, the motion court did not err in refusing to suppress Zajac's testimony regarding the exchange which occurred between the codefendants at the felony hearing, as it is abundantly clear that this communication was a spontaneous response to the testimony of a People's witness, Stephen Crowley, and was neither induced, provoked nor encouraged by the actions of the police or the District Attorney's office. Moreover, there is nothing in the record which would even tend to suggest that the detective had endeavored, by subtle maneuvering or otherwise, to overhear the challenged communication, as he was legitimately present in the courtroom to provide security, was monitoring the defendants' conduct in pursuance of his security function, was clearly visible at all times to both the defendants and their respective counsel and apparently had never been asked to move. Under such circumstances, no...

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9 cases
  • People v. Pennachio
    • United States
    • New York Supreme Court
    • 27 December 1995
    ... ... Borcsok, 107 A.D.2d 42, 44, 485 N.Y.S.2d 766; Matter of Two Grand Jury Subpoena Duces Tecum, NYLJ, July 14, 1995, at 26, col. 6) ...         In New York where one attorney represents multiple parties concerning a matter of common interest, any confidential communications exchanged among them are ... ...
  • Aetna Cas. and Sur. Co. v. Certain Underwriters at Lloyd's London
    • United States
    • New York Supreme Court
    • 17 February 1998
    ... ... and a client is sufficient to deprive the communication of the confidentiality which is one of the pillars of the privilege (see, e.g., People v. Harris, 57 N.Y.2d 335, 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205 [1982]; People v. Buchanan, 145 N.Y. 1, 26, 39 N.E. 846 [1895] ). The New York ... Osorio, 75 N.Y.2d 80, 85, 550 N.Y.S.2d 612, 549 N.E.2d 1183 [1989] ["common defense"]; People v. Borcsok, 107 A.D.2d 42, 43, 485 N.Y.S.2d 766 [2d Dept.1985] ["in furtherance of a common defense"]; People v. Pennachio, 167 Misc.2d 114, 118-19, 637 ... ...
  • In re Megan-Racine Associates, Inc.
    • United States
    • U.S. Bankruptcy Court — Northern District of New York
    • 1 February 1995
    ... ... See People v. Osorio, 75 N.Y.2d 80, 85, 550 N.Y.S.2d 612, 615, 549 N.E.2d 1183, 1186 (1989); People v. Borcsok, 107 A.D.2d 42, 485 N.Y.S.2d 766, 767 ... ...
  • People v. Shurka
    • United States
    • New York Supreme Court — Appellate Division
    • 29 March 1993
    ... ... the room when he inadvertently overheard it]; see also, People v. Murphy, 163 A.D.2d 425, 558 N.Y.S.2d 140; People v. Stewart, 160 A.D.2d 966, 554 N.Y.S.2d 687; People v. Sobolof, supra; People v. Borcsok, 107 A.D.2d 42, 485 N.Y.S.2d 766) ...         The police activity here was more akin to that in People v. Grimaldi, 52 N.Y.2d 611, 439 N.Y.S.2d 833, 422 N.E.2d 493, in that a deliberate effort was made to surreptitiously overhear the defendant's conversations. In Grimaldi, the defendant ... ...
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