| People v Hartle |
| 2014 NY Slip Op 07812 [122 AD3d 1290] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert J. Hartle, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered March 7, 2008. The judgment convicted defendant, upon a juryverdict, of murder in the first degree (two counts), murder in the second degree and arsonin the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of murder in the first degree (Penal Law § 125.27 [1][a] [viii]; [b]), and one count each of murder in the second degree (§ 125.25[1]), and arson in the third degree (§ 150.10 [1]). We reject defendant'scontention that Supreme Court erred in allowing a medical professional to testify tostatements defendant made to her while being examined at the hospital after his arrest.Defendant contends that his statements were subject to the physician-patient privilegedespite the presence of a police investigator in the examination room because he was incustody and was not able to tell the investigator to leave the room. The physician-patientprivilege, which is "entirely a creature of statute" (Dillenbeck v Hess, 73 NY2d278, 283 [1989]), is set forth in CPLR 4504 (a), and is applicable to criminal proceedingsby virtue of CPL 60.10 (see People v Wilkins, 65 NY2d 172, 176 [1985]). Indetermining whether the physician-patient privilege applies, we must consider "whetherin the light of all the surrounding circumstances, and particularly the occasion for thepresence of the third person, the communication was intended to be confidential"(People v Decina, 2 NY2d 133, 145 [1956]; see State of New York v GeneralElec. Co., 201 AD2d 802, 803 [1994]). Here, we conclude that defendant did notmeet his burden of establishing that the privilege applied (see Decina, 2 NY2d at141), because there was no showing that he intended that his statements be confidential.Defendant was aware of the investigator's presence, but he did not ask to speak with themedical professional privately. Additionally, defendant made numerous statements toothers that were similar to the statements he made to the medical professional, bothbefore and after making them to her. In any event, even if the physician-patient privilegeapplied, we conclude that any error in allowing the testimony is harmless. The evidenceof guilt is overwhelming, and there is no significant probability that the absence of theerror would have led to an acquittal (see People v Ballard, 173 AD2d 480, 480[1991], lv denied 78 NY2d 961 [1991]; see generally People v Crimmins,36 NY2d 230, 241-242 [1975]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. Defendant, relying on People v Colville (20 NY3d 20, 32 [2012]), contends thathe was denied the "expert judgment of counsel" when defense counsel decided not torequest that the court charge murder in the second degree as a lesser included offense ofmurder in the first degree. Contrary to defendant's contention, the record does notestablish that defense counsel deferred to defendant the decision not to request the lesserincluded offense. Defense counsel requested a recess to confer with defendant regardinglesser included offenses and, after that conference, defense counsel stated to the courtthat "[a]fter consulting with my client, we will not be requesting any chargedowns withregard to [the first degree murder counts]." Therefore, there is "no indication in therecord that defense counsel's position differed from" defendant's position (People v Gottsche, 118 AD3d1303, 1304 [2014]). Present—Scudder, P.J., Centra, Lindley, Sconiers andDeJoseph, JJ.