Opinion · Nylaw New York
PEOPLE v. MODZELEWSKI, 203 A.D.2d 594 [2d Dept 1994]
PEOPLE OF THE STATE OF N.Y., Respondent, v. STEPHEN MODZELEWSKI,Appellant., 611 N.Y.S.2d 22 (Appellate Division of the Supreme Court of New York, Second Department. 1994)
- Type
- Opinion
- Court
- New York
- Jurisdiction
- New York
- Date
- 1994-04-25
- Topic
- general
PEOPLE v. MODZELEWSKI, 203 A.D.2d 594 [2d Dept 1994] 611 N.Y.S.2d 22 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN MODZELEWSKI,Appellant.Appellate Division of the Supreme Court of New York, Second Department. April 25, 1994 Appeal from the County Court, Suffolk County (Cacciabaudo, J.). Ordered that the judgment is affirmed.
Citator
UpLaw has not yet analyzed PEOPLE v. MODZELEWSKI, 203 A.D.2d 594 [2d Dept 1994]. The absence of a flag is not a finding that it is good law.
PEOPLE v. MODZELEWSKI,203 A.D.2d 594[2d Dept 1994]
611 N.Y.S.2d 22
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN MODZELEWSKI,
Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
April 25, 1994
At the close of the People's case, the defendant attempted to call as his first witness an attorney for his now deceased coperpetrator to question him with respect to a certain statement the coperpetrator had allegedly made to the attorney, exculpating the defendant as the individual who shot the complainant. Upon the defendant's offer of proof, the court, actingsua sponte, refused to allow the attorney to take the stand, on the basis that any communication in this vein was protected by the "attorney-client privilege", belonging solely to the coperpetrator, and the right to waive such privilege had ceased upon the coperpetrator's death.
The defendant contends that the trial court committed reversible error by precluding him from calling the attorney to the witness stand(see, Jenkins v McKeithen,395 U.S. 411,429;People v Gilliam,37 N.Y.2d 722). We find that no error was committed, inasmuch as the defendant's offer of proof was insufficient to demonstrate that the communication was not protected by the attorney-client privilege(see, e.g., People vArroyo,77 N.Y.2d 947,948;cf., People v Gilliam, supra; Peoplev Thomas,140 A.D.2d 562,564;People v Forbes,87 A.D.2d 829;People v McClinton,75 A.D.2d 900;People v Hepburn,52 A.D.2d 958).
The defendant's remaining contentions with respect to the applicability of the attorney-client privilege or the waiver thereof regarding the communication in question, including those contained in hispro sesupplemental brief, are unpreserved for appellate review(see, CPL470.05[2];People v Padro,75 N.Y.2d 820,821) and, in any event, without merit.Page 595
The defendant's contention that the trial court erred in denying his motion to absent himself from the courtroom during the testimony of one of the prosecutor's identification witnesses is also without merit(see, People v Jackson,135 A.D.2d 831,832;People v Rheubottom,131 A.D.2d 790,791;see also, Peoplev Lundquist,151 A.D.2d 505,507). Bracken, J.P., Sullivan, Miller and Hart, JJ., concur.