People v. Fuentes
| Citation | 51 Misc.2d 354,273 N.Y.S.2d 321 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Miguel FUENTES a/k/a Miguel Vargas, Defendant. |
| Decision Date | 25 July 1966 |
| Court | United States State Supreme Court (New York) |
This is a motion by the defendant 'for an order dismissing the indictment in the furtherance of justice pursuant to Section 671 of the Code of Criminal Procedure and for an order to transfer this matter to the Family Court pursuant to Sections 812 and 813 of the Family Court Act and for an order to dismiss the indictment or in the alternative to inspect the Grand Jury Minutes.'
The defendant stands indicted for the crimes of sodomy in the first degree, assault with intent to commit sodomy (two counts) and carnal abuse of a child. All of the crimes are alleged to have been committed upon the defendant's natural daughter.
The defendant's wife testified before the grand jury that when she came home she found the defendant committing the crimes for which he has been indicted. The defendant contends that his wife should have been barred from testifying to what she observed because access to the defendant's home was afforded to her only by reason of the marital and confidential relationship existing between them. This contention is entirely devoid of merit.
Section 2445 of the Penal Law provides:
'The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage.'
In People v. Sullivan, 42 Misc.2d 1014, 1016, 249 N.Y.S.2d 589, 591, I said:
An inspection of the grand jury minutes reveals however that what the wife saw and testified to did not come about as a result of the defendant's allowing her to participate as an observer because of his reliance upon their marital relationship but rather that it was a result of the wife's unexpected appearance on the scene at the time of the defendant's commission of the crimes (cf.: People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, 160 N.E.2d 494).
The reason for the statutory rule that one spouse may not testify to the other's confidential communication is 'to protect and strengthen the marital bond' (Poppe v. Poppe, 3 N.Y.2d 312, 315, 165 N.Y.S.2d 99, 101, 144 N.E.2d 72, 73) but in this case there was no confidential communication within the accepted meaning of this statutory evidentiary rule since the act to which the wife testified was not disclosed (communicated) to her by reason of the marital relationship (People v. Melski, 10 N.Y.2d 78, 80, 217 N.Y.S.2d 65, 67, 176 N.E.2d 81, 83).
To accept the defendant's contention in this regard would mean that a spouse could not testify to any acts which she saw her husband committing even though the observance was purely fortuitous and was not the result of reliance by the other spouse on the confidential marital relationship. Such is not the rule in New York (People v. Melski, supra).
Under the circumstances the wife's testimony was not taken in violation of the defendant's statutory rights.
The defendant next contends that since the incident is one involving ...
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