Opinion
March 4, 1971
Appeal from a judgment of the County Court of Madison County rendered on a jury verdict convicting appellant of the crime of burglary in the third degree. We find no merit in appellant's contention that the testimony of an accomplice was not sufficiently corroborated, and that because there were inconsistencies in the testimony, particularly that of the accomplice, the verdict was against the weight of the evidence. The major testimony in the case did come from an accomplice, but there is clearly sufficient corroboration of that testimony in the instant record ( People v. Morhouse, 21 N.Y.2d 66, 74) and thus the jury could reasonably have found the appellant guilty beyond a reasonable doubt. Similarly we cannot agree that the remark by the District Attorney in his summation, noting the failure of the appellant to call his wife as a witness to support his alibi that he was engaged in repairing his car at the time in question, constituted reversible error. If the testimony of appellant's wife was not privileged, there clearly would be no reversible error ( People v. Leonardo, 199 N.Y. 432; People v. Bolster, 24 A.D.2d 774), and here we find no privilege. The marital privilege does not extend to all the ordinary daily exchanges between spouses, but merely those which would not have been made except for the absolute confidence of the marriage relationship ( People v. Melski, 10 N.Y.2d 78; Poppe v. Poppe, 3 N.Y.2d 312). In the instant case, the reference to the wife's testifying alludes only to statements she might have made to support appellant's testimony of his actions on that day concerning his statements to her of the problems with his automobile. Such communications certainly could not be considered to have been made under the cover of the confidence of the marriage relationship, and thus would not be protected. Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.