| People v Jacob |
| 2014 NY Slip Op 03861 [117 AD3d 1079] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph A. Jacob, Appellant. |
Raiser & Kenniff, P.C., Mineola, N.Y. (Thomas A. Kenniff of counsel), forappellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (St.George, J.), rendered November 17, 2011, convicting him of vehicular assault in thesecond degree, operating a motor vehicle while under the influence of drugs, recklessdriving, speeding, not driving on the right side, and unsafe lane changing, after a nonjurytrial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant drove his vehicle into the intersection of Sunrise Highway andCarmens Road on Long Island at a very high speed, and, without swerving, honking hishorn, or applying his brakes, plowed into a vehicle driven by 80-year-old Alice Stratigos,severely injuring her. At trial, Police Officer Martin Johnstone testified that, at the sceneof the crash, one of the defendant's neighbors told him that the defendant had taken a lotof Xanax and was trying to commit suicide. Officer Johnstone also testified that after thecrash, the defendant told him, on three occasions, that he had taken 60 Xanax tablets. Inaddition, a nurse who happened upon the accident scene testified that the defendant toldher that he had taken a large amount of Xanax, although she could not recall the exactnumber the defendant specified.
Over defense objection, the People introduced into evidence four suicide notes,which were left on the kitchen counter of the home where the defendant's wife andchildren resided. The notes either were directly or indirectly addressed to the defendant'swife and/or children and one of the notes mentioned taking Xanax. The defendantcontends that the Supreme Court should have barred the admission of the notes intoevidence based upon the marital privilege.
"One spouse may not, without consent, disclose a confidential communication madeby the other during marriage (CPLR 4502 [b]; CPL 60.10)" (People v Fediuk, 66NY2d 881, 883 [1985]). While a suicide note can be a communication made duringmarriage for the purpose of the privilege (see Matter of Vanderbilt[Rosner—Hickey], 57 NY2d 66, 73 [1982]), the spousal privilege falls "whenthe substance of a communication . . . is revealed to third parties" (id.at 74; see People vWeeks, 15 AD3d 845, 846 [2005]; People v Beard, 197 AD2d 582, 583[1993]; People v LaPlanche, 193 AD2d 1062, 1063 [1993]). Here, the substanceof the communication between the defendant and his wife of his intention to commitsuicide through taking large quantities of Xanax was revealed by the defendant to OfficerJohnstone, his neighbor, and the nurse who happened upon the scene of the accident. Inaddition, the defendant left the notes on the kitchen counter and directly addressed hischildren, as well as his wife, in one of the notes. Thus, the Supreme Court properlydetermined that the notes were not protected by the marital privilege (see People vThomas, 288 AD2d 405, 406 [2001]).
The defendant contends on appeal that the admission into evidence of his blood testresults, without nonhearsay testimony from a witness who participated in the underlyingtests, violated his right to confrontation under the Sixth Amendment (see Bullcomingv New Mexico, 564 US — , 131 S Ct 2705 [2011]; Melendez-Diaz vMassachusetts, 557 US 305, 310-311 [2009]; Crawford v Washington, 541US 36 [2004]). However, "[s]ince the defendant failed to object with specificity that thechallenged [evidence] violated his Sixth Amendment right to confront witnesses againsthim, his contention is unpreserved for appellate review" (People v Ward, 57 AD3d582, 583 [2008]; see Peoplev Perez, 9 AD3d 376, 377 [2004]).
In any event, any possible error was harmless. Trial errors resulting in a violation of adefendant's Sixth Amendment right to confrontation are harmless where, as here, theevidence of guilt is overwhelming, and " 'there is no reasonable possibility thatthe error affected the . . . verdict' " (People v Porco, 17NY3d 877, 878 [2011], quoting People v Douglas, 4 NY3d 777, 779 [2005]; see Peoplev Crimmins, 36 NY2d 230, 240-241 [1975]; People v McBee, 8 AD3d 500, 501 [2004]). Skelos, J.P.,Austin, Sgroi and LaSalle, JJ., concur.