People v. Scull

Citation340 N.E.2d 466,378 N.Y.S.2d 30,37 N.Y.2d 833
Parties, 340 N.E.2d 466 The PEOPLE of the State of New York, Respondent, v. John T. SCULL, Appellant.
Decision Date17 October 1975
CourtNew York Court of Appeals

Victor A. Rippo, Public Defender (Raymond T. Burgasser, North Tonawanda, of counsel), for appellant.

Aldo L. Di Florio, Dist. Atty. (Shavasp Hanesian, Niagara Falls, of counsel), for respondent.

MEMORANDUM.

Order of the Appellate Division, modified to the extent of reversing and vacating the conviction and concurrent sentence for criminal possession of dangerous drugs (marijuana), and the order is otherwise affirmed.

The marital privilege did not preclude the police from acting, a indeed it was their duty to act, on the wife's information and the house search consented to by her. The house search yielded the contraband sawed-off shotgun. The wife's disclosures were exceptions to the privilege, which in any event is a testimonial privilege and not a universal 'gag' rule (cf. CPLR 4502, subd. (b)). The disclosures were proffered to the police to protect her and her children from threats expressed by defendant. However, the threats alone on this record would not have justified an arrest (cf. Penal Law, § 240.25). On the basis of the disclosures by the wife and the house search the police had probable cause to arrest defendant resting on a reasonable belief that he had committed a misdemeanor, namely illegal possession of the contraband sawed-off shotgun (Penal Law, § 265.05, subd. 3). The arrest being lawful, the incidental search yielded the lysergic acid diethylamide (LSD) found on his person.

Except for the wife's testimony barred by the marital privilege there was no proof to convict defendant of the marijuana offense. Hence, that conviction must fall.

Concerning the sawed-off shotgun there was credible evidence on the trial from witnesses other than the wife which merited the inference that defendant had possessed the shotgun found on the premises jointly occupied by defendant and his wife until two days prior to the arrest.

The conduct of the trial reflected little craftsmanship. However, the conduct was free from improper motivation, and the irregularities were either not properly preserved by exception or were harmless in the light of the admissible evidence indicated earlier.

BREITEL, C.J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur.

Order modified in accordance with the memorandum herein and, as so modified, affirmed.

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4 cases
  • People v. Lifrieri
    • United States
    • United States State Supreme Court (New York)
    • 26 Marzo 1993
    ...§ 447 [10th ed.]; 8 Wigmore, Evidence § 2228 [McNaughton rev. ed.]. (a) Spousal Privilege Outside Trial In People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466, defendant's spouse summoned the police to the marital residence where she showed the officers a shotgun and some mariju......
  • People v. Rodriguez
    • United States
    • New York Court of Appeals
    • 2 Diciembre 1975
    ...People v. Dudley, 24 N.Y.2d 410, 413--414, 301 N.Y.S.2d 9, 11, 248 N.E.2d 860, 862; CPLR 4502, subd. (b); cf. People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466.) However, as indicated above, the presence of a third party negates intent to make such a 'confidential communicatio......
  • People v. LeGrand
    • United States
    • United States State Supreme Court (New York)
    • 24 Diciembre 1975
    ...Attorney and the police did not violate the marital privilege, but was in fact an exception to the privilege (People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466, dec. 10/15/75). These disclosures which she made to the District Attorney imposed upon him a duty to act. Such discl......
  • People v. Kemp
    • United States
    • New York Supreme Court Appellate Division
    • 6 Diciembre 1977
    ...that he intended to resell the cocaine, but to retain the marijuana for his own use. The court, relying on People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466 (1975) suppressed the drug equipment and the marijuana, reasoning that the wife's knowledge of them was based on confide......
9 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • 2 Agosto 2014
    ...644 N.Y.S.2d 913 (1996), § 16:140 People v. Scott McLeod, 281 A.D.2d 325, 722 N.Y.S.2d 501 (1st Dept. 2001), § 2:270 People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30 (1975), § 7:100 People v. Seaman, 239 A.D.2d 681, 657 N.Y.S.2d 242 (3d Dept. 1997), § 8:10 People v. Settles, 46 N.Y.2d 154, 4......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • 2 Agosto 2020
    ...One spouse is prosecuted for injuring the other, or one spouse wants to show injury by the other in a civil proceeding. People v. Scull , 37 N.Y.2d 833, 378 N.Y.S.2d 30 (1975); People v. Mills , 1 N.Y.3d 276, 772 N.Y.S.2d 228 (2003). • he communication between the spouses was made in the pr......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • 2 Agosto 2015
    ...One spouse is prosecuted for injuring the other, or one spouse wants to show injury by the other in a civil proceeding. People v. Scull , 37 N.Y.2d 833, 378 N.Y.S.2d 30 (1975). Invoking privilege The privilege is available to either spouse for any communication made during the privilege and......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • 2 Agosto 2019
    ...One spouse is prosecuted for injuring the other, or one spouse wants to show injury by the other in a civil proceeding. People v. Scull , 37 N.Y.2d 833, 378 N.Y.S.2d 30 (1975). Invoking privilege he privilege is available to either spouse for any communication made during the privilege and ......
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