| People v Rivera |
| 2012 NY Slip Op 06850 [99 AD3d 535] |
| October 11, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DavidRivera, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 21, 2010,as amended August 4, 2010, convicting defendant, after a jury trial, of predatory sexual assaultagainst a child, and sentencing him to a term of 13 years to life, unanimously reversed, on thelaw, and the matter remanded for a new trial.
The court should not have permitted the psychiatrist who treated defendant to testify aboutdefendant's admissions of sexual abuse. Although the psychiatrist made a proper disclosure of theabuse (see Tarasoff v Regents of Univ. of Cal., 17 Cal 3d 425, 431, 432, 435, 440-442,551 P2d 334, 340, 341, 342-343, 346-348 [1976]; People v Bierenbaum, 301 AD2d 119,141-142 [1st Dept 2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821[2003]), the Tarasoff disclosure did not operate as a waiver of the physician-patientprivilege (see United States v Hayes, 227 F3d 578 [6th Cir 2000]; but see UnitedStates v Auster, 517 F3d 312 [5th Cir 2008], cert denied 555 US 840 [2008]). Thisprivilege (see CPLR 4504) is broadly construed, and it does not contain a general publicinterest exception (see People v Sinski, 88 NY2d 487, 494-495 [1996]). We note thatBierenbaum did not involve testimony by the defendant's psychiatrist.
In this case, the psychiatrist's testimony was arguably the most damaging evidence againstdefendant, and we do not find its admission to be harmless.
In light of this determination, we find it unnecessary to reach any other issues.Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.