PEOPLE v. WHYTE (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of criminal sexual act in the second degree (Penal Law § 130.45 [1] ) and endangering the welfare of a child (§ 260.10[1] ).   Contrary to the contention of defendant, County Court properly refused to suppress evidence allegedly obtained as a result of a violation of his physician-patient privilege.   Indeed, “even if there was a violation of the physician-patient privilege, the suppression of the evidence found as a result is not required” (People v. Greene, 9 N.Y.3d 277, 280, 849 N.Y.S.2d 461, 880 N.E.2d 1).   The court also properly refused to suppress statements that defendant made during a telephone conversation with the victim's mother that was recorded by the police.   The statements were not obtained in violation of defendant's right to counsel because no formal proceedings had been commenced against defendant when the conversation was recorded, and it cannot be said that the matter had otherwise progressed from an investigatory to an accusatory stage (see People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344;  see generally Kirby v. Illinois, 406 U.S. 682, 688-690, 92 S.Ct. 1877, 32 L.Ed.2d 411;  People v. West, 81 N.Y.2d 370, 373, 599 N.Y.S.2d 484, 615 N.E.2d 968).   In addition, the statements were not obtained in violation of defendant's right against self-incrimination despite the failure of the victim's mother to inform defendant that the police were recording the conversation (see People v. Lee, 277 A.D.2d 1006, 1007, 716 N.Y.S.2d 842, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218;  People v. Williams, 242 A.D.2d 867, 662 N.Y.S.2d 672, lv. denied 91 N.Y.2d 899, 669 N.Y.S.2d 13, 691 N.E.2d 1039).

 The pretrial motion of defendant seeking to preclude the People from presenting his notebook in evidence was time-barred (see CPL 255.20[1];  People v. Hoffman, 283 A.D.2d 928, 929, 725 N.Y.S.2d 494, lv. denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662), and defendant failed to demonstrate good cause for failing to make that motion within 45 days after arraignment (see CPL 255.20[3];  People v. McQueen, 307 A.D.2d 765, 766, 762 N.Y.S.2d 562, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629).   In any event, defendant's contention lacks merit.   In support of his motion, defendant contended that the entries in the notebook fell within the scope of the attorney-client privilege, but defendant failed to establish that the attorney-client relationship existed at the time the entries were made or that the entries were made at the direction of defense counsel (see generally People v. Mitchell, 58 N.Y.2d 368, 373, 461 N.Y.S.2d 267, 448 N.E.2d 121).   Defendant failed to preserve for our review his contention that the notebook was outside the scope of the search warrant, pursuant to which it was seized (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: