598 N.Y.S.2d 877 | N.Y. App. Div. | 1993
Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), was sufficient to support the conviction and the verdict was not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).
However, County Court’s instructions to the jury on reason
Since a new trial is necessary, we note that, on the evidence in this record, the court erred in denying defendant’s request for a circumstantial evidence charge (see, People v Silva, 69 NY2d 858, 859; People v Ford, 66 NY2d 428; People v Sanchez, 61 NY2d 1022).
The court properly permitted defendant’s wife to testify concerning the time her husband arrived home on the morning of May 14, 1987, as well as her discovery of a duffel bag and its contents later that day, because those observations were not " 'communications’ ” protected by the marital privilege (People v Wilson, 64 NY2d 634, 636). With respect to the other "communications” that took place over a period of approximately six months to a year, we conclude that, although those communications were presumably privileged when made (see, CPLR 4502 [b]), the privilege was lost because the substance of those communications was revealed to a third party (see, Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 74). (Appeal from Judgment of Niagara County Court, Hannigan, J.—Murder, 2nd Degree.) Present—Callahan, J. P., Green, Lawton, Doerr and Boehm, JJ.
