Opinion
2012-10-11
The PEOPLE of the State of New York, Respondent, v. David RIVERA, Defendant–Appellant.
Epstein & Weil, New York (Lloyd Epstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Epstein & Weil, New York (Lloyd Epstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 21, 2010, as amended August 4, 2010, convicting defendant, after a jury trial, of predatory sexual assault against a child, and sentencing him to a term of 13 years to life, unanimously reversed, on the law, and the matter remanded for a new trial.
The court should not have permitted the psychiatrist who treated defendant to testify about defendant's admissions of sexual abuse. Although the psychiatrist made a proper disclosure of the abuse ( see Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 440–442, 131 Cal.Rptr. 14, 551 P.2d 334, 340, 341, 342–343 [1976];People v. Bierenbaum, 301 A.D.2d 119, 141–142, 748 N.Y.S.2d 563 [1st Dept. 2002],lv. denied99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003],cert. denied540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40 [2003] ), the Tarasoff disclosure did not operate as a waiver of the physician-patient privilege ( see United States v. Hayes, 227 F.3d 578 [6th Cir.2000]; but see United States v. Auster, 517 F.3d 312 [5th Cir.2008],cert. denied555 U.S. 840, 129 S.Ct. 75, 172 L.Ed.2d 67 [2008] ). This privilege ( seeCPLR 4504) is broadly construed, and it does not contain a general public interest exception ( see People v. Sinski, 88 N.Y.2d 487, 494–495, 646 N.Y.S.2d 651, 669 N.E.2d 809 [1996] ). We note that Bierenbaum did not involve testimony by the defendant's psychiatrist.
In this case, the psychiatrist's testimony was arguably the most damaging evidence against defendant, and we do not find its admission to be harmless.
In light of this determination, we find it unnecessary to reach any other issues.