People v. Modzelewski

• Decision Date: 25 April 1994
• Citation: 203 A.D.2d 594,611 N.Y.S.2d 22
• Parties: The PEOPLE, etc., Respondent, v. Stephen MODZELEWSKI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 22

611 N.Y.S.2d 22

203 A.D.2d 594

The PEOPLE, etc., Respondent, v. Stephen MODZELEWSKI, Appellant.

Supreme Court, Appellate Division Second Department.

April 25, 1994.

C. Whitman Hobbs, Setauket, for appellant, and appellant pro se.

James M. Catterson, Jr., Dist. Atty., Riverhead (Adrienne Brewington, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, MILLER and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cacciabaudo, J.), rendered January 13, 1993, convicting him of assault in the first degree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At the close of the People's case, the defendant attempted to call as his first witness an attorney for his now deceased coperpetrator to question him with respect to a certain statement the coperpetrator had allegedly made to the attorney, exculpating the defendant as the individual who shot the complainant. Upon the defendant's offer of proof, the court, acting sua sponte, refused to allow the attorney to take the stand, on the basis that any communication in this vein was protected by the "attorney-client privilege", belonging solely to the coperpetrator, and the right to waive such privilege had ceased upon the coperpetrator's death.

The defendant contends that the trial court committed reversible error by precluding him from calling the attorney to the witness stand (see, Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1852, 23 L.Ed.2d 404; People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129). We find that no error was committed, inasmuch as the defendant's offer of proof was insufficient to demonstrate that the communication was not protected by the attorney-client privilege (see, e.g., People v. Arroyo, 77 N.Y.2d 947, 948, 570 N.Y.S.2d 481, 573 N.E.2d 569; cf., People v. Gilliam, supra; People v. Thomas, 140 A.D.2d 562, 564, 528 N.Y.S.2d 634; People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9; People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61; People v. Hepburn, 52 A.D.2d 958, 383 N.Y.S.2d 626).

The defendant's remaining contentions with respect to the applicability of the attorney-client privilege or the waiver thereof regarding the communication in question, including those contained in his pro se supplemental brief, are unpreserved for appellate review (see, CPL 470.05[2]; People...