People v. Fediuk

104 A.D.2d 1003, 480 N.Y.S.2d 913, 1984 N.Y. App. Div. LEXIS 20438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1984
• Status: Published

Opinions

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Dubin, J.), rendered May 20, 1980, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered. The findings of fact have been considered and are determined to be established.

The admission of the contents of defendant’s telephone conversation with his wife violated his marital privilege (CPLR 4502, subd [b]). The fact that the parties were separated did not destroy the privilege herein, since defendant obviously clung to the illusion that they could still reconcile (see People v Fields, 38 AD2d 231, affd 31 NY2d 713; People v Oyola, 6 NY2d 259).

The issue of whether defendant acted under extreme emotional disturbance was closely contested. The wife’s testimony concerning the telephone conversation was crucial to the prosecution’s psychiatrist’s evaluation of defendant’s mental state at the time of the incident. This testimony was clearly prejudicial to defendant and may not be deemed harmless.

Accordingly, reversal is required. We have reviewed the defendant’s other contentions and find them to be without merit. Bracken, J. P., Brown and Niehoff, JJ., concur.