PEOPLE v. DRAYTON (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of endangering the welfare of a child (Penal Law § 260.10[1] ) and one count of driving while ability impaired by drugs (Vehicle and Traffic Law § 1192[4] ).   Defendant contends that County Court erred in refusing to suppress his blood sample, which was collected by hospital staff and then obtained by the police in violation of the physician-patient privilege pursuant to CPLR 4504(a).   We reject that contention.   The blood sample was obtained pursuant to a search warrant that was supported by probable cause (see People v. Casadei, 66 N.Y.2d 846, 848, 498 N.Y.S.2d 357, 489 N.E.2d 244;  see generally Matter of Abe A., 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265) and, unlike hospital records and diagnostic test results concerning a defendant's blood content, a blood sample does not constitute information communicated to a physician from a patient to invoke the physician-patient privilege (see generally People v. Elysee, 49 A.D.3d 33, 38, 847 N.Y.S.2d 654, lv. granted 10 N.Y.3d 840, 859 N.Y.S.2d 398, 889 N.E.2d 85;  Dillenbeck v. Hess, 73 N.Y.2d 278, 289, 539 N.Y.S.2d 707, 536 N.E.2d 1126).   Even assuming, arguendo, that the seizure of the blood sample by the police constituted a violation of the physician-patient privilege under CPLR 4504(a), we conclude that the court properly refused to suppress the evidence results from the blood sample inasmuch as “a violation of a statute does not, without more, justify suppressing the evidence to which that violation leads” (People v. Greene, 9 N.Y.3d 277, 280, 849 N.Y.S.2d 461, 879 N.E.2d 1280).

Defendant failed to preserve for our review his contention that the court erred in permitting the People to present testimony concerning the contents of toxicology reports in order to establish defendant's propensity for drug use (see People v. Varsos, 182 A.D.2d 508, 509, 582 N.Y.S.2d 193, lv. denied 80 N.Y.2d 911, 588 N.Y.S.2d 836, 602 N.E.2d 244) and, in any event, that contention lacks merit.   Finally, we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: