Opinion
June 2, 1989
Appeal from the Steuben County Court, Finnerty, J.
Present — Callahan, J.P., Doerr, Boomer, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's argument that the police lacked probable cause to arrest him is without merit. Information provided by a victim of the burglary was sufficient to support a reasonable belief that a burglary had been committed and that defendant and his wife were the perpetrators (see, People v. Johnson, 66 N.Y.2d 398, 402; People v. Bigelow, 66 N.Y.2d 417, 423). Thus, the arresting officers were entitled to search the vehicle incident to the lawful arrest of its occupants (see, People v. Belton, 55 N.Y.2d 49, 55).
Contrary to defendant's assertions, statements he made to his wife were not protected by the marital privilege. "Not protective of all communications, the privilege attaches only to those statements made in confidence and `that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship'" (Matter of Vanderbilt [Rosner — Hickey], 57 N.Y.2d 66, 73, quoting Poppe v. Poppe, 3 N.Y.2d 312, 315). Communications that include threats are not protected by the marital privilege because the threats indicate that the communication is not being made in reliance upon the marital relationship (see, People v. Mohammed, 122 Misc.2d 504; see also, People v. Patterson, 39 N.Y.2d 288, 304, affd 432 U.S. 197; People v. Dudley, 24 N.Y.2d 410, 415). We see no reason to disturb the trial court's finding that the communications between defendant and his wife were not made in reliance upon the loyalty engendered by the marital relationship. Defendant's wife testified about threats and physical abuse by defendant forcing her to participate in the burglaries. Under these circumstances, statements made by defendant to his wife are not protected by the marital privilege.
Defendant's other contentions on appeal are either unpreserved or without merit.