Opinion
Argued December 15, 1980
Decided January 15, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HAROLD J. SILBERMANN, J.
William H. Roth and William E. Hellerstein for appellant.
Mario Merola, District Attorney (Howard Birnbach and Billie Manning of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, and a new trial ordered.
On cross-examination the trial court, over repeated objection, allowed the District Attorney to question defendant not only as to whether he had conferred with his attorney about the case but as well as to the subject matter of their conversation, viz., the law of self-defense. We agree with the Appellate Division that the latter was error. The District Attorney plainly sought to probe defendant's confidential discussions with his attorney on a matter which was the principal issue in the case and, by compelling defendant to admit that his attorney had informed him of the legal requirements of the justification defense, violated the attorney-client privilege.
We cannot agree with the Appellate Division, however, that the error was harmless. The weight and nature of the proof of guilt, taken in light of the assertion of self-defense, was not overwhelming. Thus there is no basis for consideration of the application here of the harmless error doctrine.
We have examined defendant's remaining contentions and find they were not preserved for our review.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order reversed, etc.