Summary
In People v Scull, (37 NY2d 833), the Court of Appeals held that "[t]he marital privilege did not preclude the police from acting, and indeed it was their duty to act, on the wife's information and the house search consented to by her."
Summary of this case from People v. BennasrOpinion
Argued September 18, 1975
Decided October 17, 1975
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JOHN V. HOGAN, J.
Victor A. Rippo, Public Defender (Raymond T. Burgasser of counsel), for appellant.
Aldo L. Di Florio, District Attorney (Shavasp Hanesian of counsel), for respondent.
MEMORANDUM. Order of the Appellate Division modified to the extent of reversing and vacating the conviction and concurrent sentence for criminal possession of dangerous drugs (marijuana), and the order is otherwise affirmed.
The marital privilege did not preclude the police from acting, as indeed it was their duty to act, on the wife's information and the house search consented to by her. The house search yielded the contraband sawed-off shotgun. The wife's disclosures were exceptions to the privilege, which in any event is a testimonial privilege and not a universal "gag" rule (cf. CPLR 4502, subd [b]). The disclosures were profferred to the police to protect her and her children from threats expressed by defendant. However, the threats alone on this record would not have justified an arrest (cf. Penal Law, § 240.25). On the basis of the disclosures by the wife and the house search the police had probable cause to arrest defendant resting on a reasonable belief that he had committed a misdemeanor, namely illegal possession of the contraband sawed-off shotgun (Penal Law, § 265.05, subd 3). The arrest being lawful, the incidental search yielded the lycergic acid diethylamide (LSD) found on his person.
Except for the wife's testimony barred by the marital privilege there was no proof to convict defendant of the marijuana offense. Hence, that conviction must fall.
Concerning the sawed-off shotgun there was credible evidence on the trial from witnesses other than the wife which merited the inference that defendant had possessed the shotgun found on the premises jointly occupied by defendant and his wife until two days prior to the arrest.
The conduct of the trial reflected little craftsmanship. However, the conduct was free from improper motivation, and the irregularities were either not properly preserved by exception or were harmless in the light of the admissible evidence indicated earlier.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order modified in accordance with the memorandum herein and, as so modified, affirmed.