Opinion
Argued October 27, 1994
Decided December 8, 1994
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Alan Broomer, J.
Allen Fallek, New York City, and Philip L. Weinstein for appellant.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anne C. Feigus, Roseann B. MacKechnie and Richard T. Faughnan of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Whether the police knew or should have known defendant was actually represented by counsel on the matter for which he was in custody (People v Rogers, 48 N.Y.2d 167), as he alleges, the record supported the determination of both lower courts that defendant's mother and brother were not acting as agents of the police when they spoke to defendant about his killing of his mother's long-time live-in companion (CPL 60.45 [b]; People v Ray, 65 N.Y.2d 282). Moreover, a parent-child testimonial privilege (which defendant urges be adopted to preclude his mother's testimony) would not even arguably apply in that defendant was 28 years old at the time of the conversation with his mother; another family member was present; the mother testified before the Grand Jury hearing evidence against defendant; and the conversation concerned a crime committed against a member of the household.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.