Opinion
KA 04-02076.
February 4, 2005.
Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered on July 2, 2003. The judgment convicted defendant, after a nonjury trial, of criminal possession of a weapon in the fourth degree.
Present: Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of criminal possession of a weapon in the fourth degree (Penal Law § 265.01). Contrary to the contentions of defendant, the evidence is legally sufficient to establish that he had dominion and control over the area where the weapon was found ( see People v. Torres, 68 NY2d 677, 679; People v. Pleczyj, 254 AD2d 753, lv denied 92 NY2d 1052; People v. Shambo, 209 AD2d 1011, lv denied 84 NY2d 1038, 85 NY2d 980 [1995]), and the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 NY2d 490, 495). We agree with defendant that Supreme Court erred in allowing his wife to testify that he showed her the weapon on a prior occasion. "One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)" ( People v. Fediuk, 66 NY2d 881, 883). "[A]cts as well as words may be the subject of communications" ( People v. Melski, 10 NY2d 78, 80; see People v. Wilson, 64 NY2d 634, 636; People v. Beard, 197 AD2d 582, 583, lv denied 82 NY2d 891; People v. Yakoumakis, 156 AD2d 499, lv denied 75 NY2d 926). Here, the People did not rebut the presumption that the act of defendant in showing the weapon to his wife was confidential ( see generally Fediuk, 66 NY2d at 883). The error, however, is harmless. "The proof of defendant's guilt was overwhelming and there is no significant probability that the [court] would have acquitted defendant had it not been for the error which occurred" ( People v. Williams, 178 AD2d 958, 959, lv denied 79 NY2d 954; see People v. Mastrangelo, 203 AD2d 942, 942-943, lv denied 83 NY2d 912).