People v. Modzelewski

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

203 A.D.2d 594

611 N.Y.S.2d 22

203 A.2d 594

The People of the State of New York, Respondent, v. Stephen Modzelewski, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 25, 1994

Bracken, J. P., Sullivan, Miller and Hart, JJ., concur.

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 US 411, 429; People v Gilliam, 37 N.Y.2d 722). 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; cf., People v Gilliam, supra; People v Thomas, 140 AD2d 562, 564; People v Forbes, 87 AD2d 829; People v McClinton, 75 AD2d 900; People v Hepburn, 52 AD2d 958).

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 v Padro, 75 N.Y.2d 820, 821) and, in any event, without merit.

The defendant's contention that the trial court erred in denying his motion to absent himself from the courtroom during the testimony of one of the prosecutor's identification witnesses is also without merit (see, People v Jackson, 135 AD2d 831, 832; People v Rheubottom, 131 AD2d 790, 791; see also, People v Lundquist, 151 AD2d 505, 507).