Vanderbilt (Rosner-Hickey), Matter of

• Decision Date: 01 July 1982
• Parties: , 439 N.E.2d 378 In the Matter of the Bronx County Grand Jury Investigation into the Attempted Murder of Clara VANDERBILT. Jonathan L. ROSNER, Individually and as Attorney for Richard G. Rosen, et al., Appellants-Respondents; Pat HICKEY, as Clerk of the Supreme Court of the State of New York, Bronx County, Respondent-Appellant. (And Another Proceeding.)
• Court: New York Court of Appeals Court of Appeals

Page 662

453 N.Y.S.2d 662

57 N.Y.2d 66, 439 N.E.2d 378

In the Matter of the Bronx County Grand Jury Investigation into the Attempted Murder of Clara VANDERBILT. Jonathan L ROSNER, Individually and as Attorney for Richard G. Rosen et al., Appellants-Respondents Pat HICKEY, as Clerk of the Supreme Court of the State of New York, Bronx County, Respondent-Appellant (And Another Proceeding.)

Court of Appeals of New York.

July 1, 1982.

Jonathan L. Rosner, New York City, appellant-respondent pro se, and for another, appellants-respondents.

Mario Merola, Dist. Atty. (Steven R. Kartagener, Brooklyn, and Alan D. Marrus, New York City, of counsel), for respondent-appellant.

OPINION OF THE COURT

COOKE, Chief Judge.

The marital privilege may protect from discovery a tape recording left to one spouse by the other, even though the tape apparently was prepared in contemplation of suicide. Having attached, the marital privilege also precludes examining the tape for deletions or erasures. In addition, a tape recording having left the maker's possession, but which is regained without disclosure of its contents and delivered to the maker's attorney in order to obtain legal advice, is protected by a combination of the Fifth Amendment privilege against self incrimination and the attorney-client privilege.

background

Late on December 31, 1981, Clara Vanderbilt told an acquaintance that her friend Dr. Richard Rosen had requested that she meet him at his office at Montefiore Hospital, where they both worked. A short time later, Vanderbilt was found outside Dr. Rosen's office, unconscious from a severe bludgeoning about the head. Extensive surgery succeeded in preventing her death.

By January 3, 1982, Rosen knew he was a target of the assault investigation. On that day, he visited Vanderbilt at the hospital and learned that she had received a favorable prognosis. Rosen went to his office, made a tape recording at his desk, and then left the hospital. That evening, he attempted suicide at his house. Lifesaving emergency care was given to him at White Plains Hospital.

After accompanying her husband to the hospital, Barbara Rosen returned to their home in the late evening of January 3. In the study, she found a cassette tape addressed to "Barbara" ("Tape No. 1"). Mrs. Rosen did not listen to the cassette, however.

The next day, January 4, Mrs. Rosen spoke to Arthur Olick, a neighbor and close friend of the Rosens who is an attorney. At this time, Dr. Rosen was still hospitalized and unconscious. After the wife related all the recent events, Olick expressed the need to retain counsel for Dr. Rosen and advised Mrs. Rosen to act for her husband. Mrs. Rosen told Olick of the tape she had found in the study and that she wanted to throw it away because of her aversion to listening to it. Olick instructed her to give the tape to him instead, to answer truthfully any questions about its existence, and to refer all inquiries to him.

Olick also suggested that Dr. Rosen's hospital office be examined for any other notes or tapes. Mrs. Rosen telephoned her husband's superior and requested that he look for such articles. A second cassette then was retrieved from Dr. Rosen's desk and delivered to Mrs. Rosen ("Tape No. 2"). Mrs. Rosen wrapped both cassettes and left them in Olick's mailbox on the afternoon of January 4.

After the doctor regained consciousness, he hired Jonathon Rosner to represent him. Mrs. Rosen took the still-sealed tapes from Olick and delivered them to Rosner by handing them to Rosner's 15-year-old son.

In the course of the police investigation, Mrs. Rosen voluntarily revealed the existence of Tape No. 1 and Rosner's possession of it. Rosner refused to comply either with a Grand Jury subpoena duces tecum seeking the tape or with an ex parte court order directing that the tape be surrendered under seal to the court for the purpose of protecting the tape's integrity. At a hearing on January 27, on an order to show cause and on a motion to quash the subpoena, Rosner admitted the existence and his possession of Tape No. 2. The court declined to rule whether the claimed privileges--attorney-client, marital, and that against self incrimination--protected the two tapes from discovery by subpoena. Instead the court found Rosner to be in contempt, but allowed him until the morning of January 29 to deliver the tapes to the court for safekeeping.

On January 28, Rosner and an Assistant District Attorney stipulated before a single Appellate Division Justice that the tapes would be surrendered to Supreme Court as ordered, but under seal. This was done on January 29. On the same day, a subpoena duces tecum was also served on Rosner for Tape No. 2.

On February 1, Rosner and Dr. Rosen commenced an article 78 proceeding to force the tapes' return. The Assistant District Attorney moved for the tapes' release to the Grand Jury. The Trial Judge declared that he would hear both applications on February 3 and, in the interim, he would listen to the tapes.

On February 3, the Assistant District Attorney served papers opposing the motion to quash and also another Grand Jury subpoena duces tecum seeking "any and all tapes, documents or written communications made by Mr. Rosner that are relevant to this investigation." Following the hearing, the Trial Judge, without discussing the privilege claims, ruled that the subpoenas should be quashed because the tapes were irrelevant to the Grand Jury investigation into Vanderbilt's assault, a ground not raised by petitioners.

On appeal, the Appellate Division, 87 A.D.2d 528, 448 N.Y.S.2d 3, unanimously reversed. It ruled that the contents of Tape No. 1--the tape to Mrs. Rosen--were protected by the marital privilege. In response to a claim of possible tampering, however, the Appellate Division ordered that Tape No. 1 be scientifically tested to ascertain whether it had "been altered in any manner". As to Tape No. 2, the court conclusorily stated only that "no privilege whatsoever can attach" and ordered its full disclosure to the Grand Jury, as well as any scientific analysis the Grand Jury might deem appropriate.

tape no. 1

Petitioners Dr. Rosen and Rosner argue that Tape No. 1 is protected from discovery by virtue of the marital privilege, and that this protection extends beyond the tape's contents so as to bar any scientific examination for tampering.

The marital privilege provides that "husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage" (CPLR 4502, subd. ). Not protective of all communications, the privilege attaches only to those statements made in confidence and "that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship" (Poppe v. Poppe, 3 N.Y.2d 312, 315, 165 N.Y.S.2d 99, 144 N.E.2d 72; see, also, Prink v. Rockefeller Center, 48 N.Y.2d 309, 314, 422 N.Y.S.2d 911, 398 N.E.2d 517; Fisch, New York Evidence § 597, p. 380). Whether a statement comes within the marital privilege is a preliminary question for the court, and involves a determination that must be made on an ad hoc basis (see Poppe v. Poppe, supra, 3 N.Y.2d at p. 315, 165 N.Y.S.2d 99, 144 N.E.2d 72; Fisch, New York Evidence, p. 381; 4 Bender's, New York Evidence § 245.03, subd. par. p. 446.9).

The initial inquiry then is whether Dr. Rosen was induced by the marital relation to prepare Tape No. 1. Communications that would have been made regardless of the marriage's existence are not protected (see Parkhurst v. Berdell, 110 N.Y. 386, 393-394, 18 N.E. 123). Nor are communications made without reliance on the marital relation or that are aimed at destroying the marriage (see Poppe v. Poppe, 3 N.Y.2d 312, 315, 165 N.Y.S.2d 99, 144 N.E.2d 72, supra; People v. McCormack, 278 App.Div. 191, 196-197, 104 N.Y.S.2d 139, affd. 303 N.Y. 782, 103 N.E.2d 895).

Respondent argues that Tape No. 1 is not protected by the marital privilege because, as a suicide message, it was not intended to be received during the marriage and was made in contemplation of destroying it. This argument is unpersuasive. Whether the communication was meant to be received after death is irrelevant; the concern is whether the statement was made because of the marital relation (cf. New York Life Ins. Co. v. Ross, 30 F.2d 80, 81, 6th Cir. ). To that extent, the communication is made "during marriage" for the purpose of the privilege. Nor is a suicide note the sort of communication excluded from the privilege's scope as aimed at destroying the marriage. That exception refers to the nature of the statement itself (see, e.g., Poppe v. Poppe, 3 N.Y.2d 312, 165 N.Y.S.2d 99, 144 N.E.2d 72, supra ). A suicide note to one's spouse may be a last attempt to preserve the affection that gave rise to the marriage and to explain the reason for the drastic act.

Nothing in the record suggests any reason for concluding that Dr. Rosen's tape to his wife was not induced by the marital relationship. Thus, the tape must be considered as satisfying the first condition of the privilege.

The next issue in determining if the privilege should prevent disclosure is whether Dr. Rosen's statement to his wife, made via the cassette recording, was and remains "confidential". No question can be raised that Dr. Rosen made the tape and "delivered" it to his wife outside the presence of any third parties. Thus, at the time Mrs. Rosen discovered the tape, its message was unknown to anyone outside the marriage and so remained confidential for the purpose of the marital privilege.

That Tape No. 1 passed through the hands of Olick and Rosner's son, third parties with no justifiable interest in becoming privy to the marital privilege, did not destroy that privilege. ¹ The privilege falls only when the substance of a communication, and not the mere fact of its occurrence, is revealed to third parties (see People v....