People v. Fediuk

• Decision Date: 21 November 1985
• Citation: 66 N.Y.2d 881,498 N.Y.S.2d 763,489 N.E.2d 732
• Parties: , 489 N.E.2d 732 The PEOPLE of the State of New York, Appellant-Respondent, v. Andre FEDIUK, True Name Andry Fediuk, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 763

498 N.Y.S.2d 763

66 N.Y.2d 881, 489 N.E.2d 732

The PEOPLE of the State of New York, Appellant-Respondent, v. Andre FEDIUK, True Name Andry Fediuk, Respondent-Appellant.

Court of Appeals of New York.

Nov. 21, 1985.

John J. Santucci, Dist. Atty. (Ray F. Cerreta, of counsel), for appellant-respondent

Judith Preble and William E. Hellerstein, New York City, for respondent-appellant.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

Five months after separating from his wife and their two children, during which time she lived in a battered women's shelter and told defendant that she no longer loved him, defendant learned that his wife had been seeing another man, Walter Cassella, and had taken a trip with Cassella and the children. Having read in his wife's diary that Cassella was the only man she ever loved, defendant confronted them both, punched and threatened to kill her, and shot and killed Cassella. Defendant surrendered to the police, then called his wife. When she asked in their telephone conversation why he had killed Cassella, defendant responded that it was because he loved her and wanted to prove his love to her. When she asked if he had nightmares about the killing, defendant responded that it didn't bother him at all. ¹ In defendant's trial for the murder of Cassella, his wife testified for the People, and over objection related the substance of their telephone conversation. Defendant sought to establish a defense of extreme emotional disturbance, but was convicted, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the fourth degree. The Appellate Division reversed and ordered a new trial, concluding that admission of the contents of defendant's telephone conversation with his wife violated his marital privilege. One justice dissented, voting to reduce the conviction to manslaughter in the first degree because in his view defendant established that he had acted under the influence of extreme emotional disturbance. We now affirm.

One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 CPL 60.10). "Not protective of all communications, the privilege attaches only to those statements made in confidence and 'that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.' " (Matter of Vanderbilt 57 N.Y.2d 66, 73, 453 N.Y.S.2d 662, 439 N.E.2d 378.) Communication between spouses "is presumed to have been conducted under the mantle of confidentiality" (People v. Fields, 38 A.D.2d 231, 233, 328 N.Y.S.2d 542, affd. on opn. below 31 N.Y.2d 713, 337 N.Y.S.2d 517, 289 N.E.2d 557). This presumption is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated, for even in a stormy separation disclosures to a spouse may be induced by absolute confidence in the marital relationship (see, People v. Fields, supra; People v. Dudley, 24 N.Y.2d 410, 414, 301 N.Y.S.2d 9, 248 N.E.2d 860; People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, 160 N.E.2d 494). Here, the circumstances of defendant's call to his wife shortly after his surrender, coupled with the substance of his declarations to her, reveal that his statements were prompted by the affection, confidence and loyalty engendered by the marital relationship, and that he "clung to the illusion that they could still reconcile" (People v. Fediuk, 104 A.D.2d 1003, 1004, 480 N.Y.S.2d 913). ² The communications thus fall within the marital privilege. Nor can the error in admitting this testimony be considered harmless, for defendant's absence of remorse was relied upon both by the People's psychiatric expert in his evaluation of defendant's mental state and by the prosecutor in his summation, which made specific reference to the wife's testimony regarding the telephone conversation.

Defendant's cross appeal must be dismissed because the order of the Appellate Division was not adverse to him (CPL 450.90), but we have considered his arguments in support of affirmance (CPL 470.35), and we find them without merit. We note in particular that once defendant announced that he would introduce expert psychiatric testimony, although there was no specific statutory basis at that time (see, CPL 250.10subsequently enacted), the court in the circumstances acted within its discretion in granting the prosecution's application to have defendant submit to a psychiatric examination. Further, the testimony of the People's expert witness was not incredible as a matter of law, and given the conflicting testimony the defense of extreme emotional disturbance was not established as a matter of law.

ALEXANDER, Judge (dissenting in part).

In my view, the evidence in this case conclusively rebuts any presumption that the communication between the defendant and his estranged wife, which the majority and the court below would exclude as a "confidential communication", was induced by any confidence in the marital relationship. The communication therefore was not privileged and was properly received in evidence. Accordingly, I respectfully dissent to the extent of voting to reverse the order of the Appellate Division and reinstate the judgment of conviction on the People's appeal.

Some nine days after having shot and killed his estranged wife's lover, the defendant returned from California where he had fled after the shooting with one of the children of the marriage. He telephoned his wife who initially was reluctant to speak to him but then relented. During their conversation she asked him: "Andy, why did you do that?", to which he responded "Because I love you * * * that's to prove my love to you." She then asked him where he had gone after the shooting. He told her he had gone to California and that when he arrived there he called his mother and was told to come right back. His wife then asked him whether or not it "botherthat killed somebody?"--"Don't you have nightmares or anything?" He replied "it doesn't bother me at all. That's funny my mother asked me the same thing." ^*

Despite the fact that the defendant and his wife had been separated for some five months; that she had been forced to take shelter in a battered women's residence following their separation; that she had told him on more than one occasion that she no longer loved him; that on the day of the shooting he had punched her and chased her around the street and had later returned with a rifle which he fired at her while she was holding their child as a shield, narrowly missing her and telling her to "put the baby aside" and threatening to end his wife's life "once and for all", the majority flatly concludes that "the circumstances of call to his wife shortly after his surrender, coupled with the substance of his declarations to her, reveal * * * that he 'clung to the illusion that they could still reconcile' " (majority mem, pp. 883-884, 498 N.Y.S.2d p. 765, 489 N.E.2d p. 734). In my view, neither a fair reading of the conversation nor any other circumstances revealed by this record fairly supports such a conclusion.

It has long been the rule, only recently reaffirmed by this court that the marital...