People v. Helmus

• Decision Date: 09 May 1966
• Citation: 50 Misc.2d 47,269 N.Y.S.2d 613
• Parties: PEOPLE of the State of New York, Plaintiff, v. Peter R. HELMUS, Defendant.
• Court: New York County Court

Page 613

269 N.Y.S.2d 613

50 Misc.2d 47

PEOPLE of the State of New York, Plaintiff, v. Peter R. HELMUS, Defendant.

Nassau County Court, Special Term, Part I.

May 9, 1966.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

Scher & Landa, Great Neck, for defendant.

MARTIN M. KOLBRENER, Judge.

This is a motion to suppress the use of a pistol on the trial of an indictment accusing the defendant of the crime of criminally possessing a loaded firearm. It appears from the testimony at the hearing before me, that upon the complaint of the wife of the defendant, a police officer called at the home of the defendant and was told of an allegedly stolen automobile.

Before the policeman gave evidence of the conversation with the wife, defendant's counsel objected to any such testimony on the ground that the evidence was inadmissible under Sec. 2445 of the Penal Law which, inter alia, provides

'neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage.'

The testimony was received by me subject to the objection and a motion to strike.

The wife told the policeman that it was her husband who had probably taken the car and she was reporting the missing car as stolen because they had been 'fighting all night and I want to keep him out of the house'. She then told the police officer that her husband had a pistol concealed in the house and she produced it for the policeman.

There is no doubt that were she on the witness stand, during the trial of the indictment, her testimony that her husband illegally possessed a gun would be inadmissible because it is a 'confidential communication' under Penal Law Sec. 2445. People v. Daghita, 299 N.Y. 194, 198, 199, 86 N.E.2d 172, 173, 174, 10 A.L.R.2d 1385; Warner v. Press Publishing Company, 132 N.Y. 181, 186, 30 N.E. 393, 395; People v. Wood, 126 N.Y. 249, 27 N.E. 362. The privilege inures to the benefit of not only the testifying spouse but also to the other against whom the testimony is offered. People v. McCormack, 278 A.D. 191, 104 N.Y.S.2d 139; People v. Wood, supra. (See Opinion of Shapiro, J., People v. Sullivan, 42 Misc.2d 1014, 249 N.Y.S.2d 589).

The District Attorney, however, argues that it is not the wife's testimony which is offered, but the testimony of a police officer, 'as to what the wife said to him and what the wife gave him. True, this would be hearsay * * * but we are dealing with a hearing on the validity of a seizure, and * * * both the federal rule and this state's rule admit hearsay on a hearing of this type.' Before Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the rule in New York was that evidence was admissible even if obtained by unconstitutional methods. People v. Defore, 242 N.Y. 13, 150 N.E. 585. Mapp, however, held that evidence obtained in violation of the Fourth Amendment to the United States Constitution is inadmissible. The court came to that decision to preserve the sancity of the Constitution and as a deterrent to the illegal acts of police officers.

'Only last year the Court itself recognized that the purpose of the exclusionary rule 'is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.' Elkins v. United States, supra, 364 U.S. (206) at page 217, 80 S.Ct. (1437) at page 1444 (4 L.Ed.2d 1669).' (Mapp v. Ohio, 367 U.S. 643, at 656, 81 S.Ct. 1684, at 1692).

Here, however, we have no overreaching by the police, no trespassing on the security of the home or the person as in Mapp. We have here no violation of the Constitutional rights of her husband. True, there was a conversation or communication by the wife which if offered in a law court, would be inadmissible (Penal Law, § 2445). The testimony of the police officer, although hearsay, is not inadmissible (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263). However, because her disclosure to the policeman may be illegal in a court room, it is not in a class with the acts prohibited by the Unreasonable Search Amendment of the United States Constitution. Here we are dealing with a rule of evidence as promulgated by the Legislature.

In Jones v. United States, 362 U.S. 257, at page 261, 80 S.Ct. 725, at...