People v. Marsh

59 A.D.2d 623, 398 N.Y.S.2d 166, 1977 N.Y. App. Div. LEXIS 13457

Opinion

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered March 2, 1976, convicting him of murder in the second degree and attempted robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The trial court erred in granting the prosecutor’s application to compel defense counsel to turn over, for his cross-examination of appellant, any notes counsel or his investigator had made during conversions with appellant. When he took the stand in his own defense, appellant waived only his privilege against self incrimination. The attorney-client privilege is not waived unless a defendant testifies as to the contents of prior conversations with his attorney or the latter’s agent (People v Lynch, 23 NY2d 262). The record demonstrates that timely objection had been made and the prosecutor’s application should have been denied. However, the record also demonstrates that the notes were not utilized in a manner which prejudiced appellant and, therefore, the error was not of such a nature as would warrant reversal (see People v Crimmins, 36 NY2d 230). We have considered appellant’s other arguments for reversal and find them to be without merit. Damiani, J. P., Shapiro, Mollen and O’Connor, JJ., concur.