Summary
holding that the defendant's attempt to enlist his wife's assistance in a criminal scheme was made "in pursuit of a criminal enterprise" and therefore not entitled to the protection of the confidential marital communications privilege
Summary of this case from Williams v. StateOpinion
May 23, 1986
Appeal from the Yates County Court, Dugan, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of second degree assault and related crimes for striking an acquaintance on the head with a pool cue. Defendant's primary claim is that the trial court violated his marital privilege of confidential communication (see, CPLR 4502 [b]; CPL 60.10) in permitting defendant's wife to testify about conversations she had with defendant in which defendant, by threats of force, attempted to enlist her support in a criminal scheme that resulted in the assault. We disagree. The privilege does not apply because the statements were not made out of affection, confidence or loyalty in the marital relationship (see, People v Fediuk, 66 N.Y.2d 881), but rather were made by threats and in pursuit of a criminal enterprise (see, People v Dudley, 24 N.Y.2d 410, 414-415; People v Melski, 10 N.Y.2d 78, 81; Poppe v Poppe, 3 N.Y.2d 312, 316-317; People v Watkins, 63 A.D.2d 1033, 1034, cert denied 439 U.S. 984).
Defendant's claim that the pool cue was not a dangerous instrument within the meaning of the second degree assault statute (Penal Law § 120.05) clearly is without merit. The pool cue, under the circumstances in which it was used, was readily capable of causing death or other serious physical injury (see, Penal Law § 10.00; People v Carter, 53 N.Y.2d 113; People v Ozarowski, 38 N.Y.2d 481, 491, n 3; People v Davis, 96 A.D.2d 680, 681). Moreover, the two-inch head laceration the victim received was a physical injury sufficient to sustain defendant's conviction for second degree assault (see, Penal Law § 10.00; People v Rojas, 61 N.Y.2d 726; People v Starling, 101 A.D.2d 704; People v Chesebro, 94 A.D.2d 897).
We have considered each of defendant's remaining claims and find that none requires reversal.