THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANDEE WRIGHT DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

Memorandum: Defendant appeals from a judgment convicting her following a jury trial of murder in the second degree (Penal Law § 125.25 [1]) based on allegations that she intentionally killed her newborn baby immediately after giving birth at home. A prior trial resulted in a mistrial when the jury could not reach a unanimous verdict. On appeal, defendant contends that the evidence at the first trial was legally insufficient to support the conviction and that the second trial was therefore barred by double jeopardy. Defendant also challenges the sufficiency and weight of the evidence at the second trial. We reject those contentions.

The evidence at the second trial was substantially similar to that presented at the first trial, and we conclude that the evidence at both trials, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1980]), is legally sufficient to establish all elements of the crime of which defendant was convicted (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Archie, 118 AD3d 1292, 1292 [4th Dept 2014], lv denied 26 NY3d 965 [2015]). Contrary to defendant's contention, the testimony of the People's experts in both trials was not equivocal or, as argued at both trials, “nonsensical.” Rather, the testimony of the People's experts, viewed in the light most favorable to the People, established that the baby was born alive (see Penal Law § 125.05) inasmuch as it was “wholly expelled from its mother's body and possessed or was capable of an existence by means of a circulation independent of her own” (People v Hayner, 300 NY 171, 174 [1949]; see People v Hardy, 128 AD3d 1453, 1455 [4th Dept 2015], lv denied 25 NY3d 1202 [2015]), and that the cause of death was non-accidental blunt force trauma to the head.

The People's experts were unanimous in their opinion that the medical evidence established that the baby had breathed for at least some period of time, which would be possible only if it was born alive. The experts also agreed that the two complex fractures sustained by the baby could not have happened during birth, could not have been caused by a short fall into the toilet or onto the floor, and were caused by two separate impacts of severe blunt force trauma. According to the People's experts, the blood hemorrhaging in the brain in the area of the two skull fractures established that the baby was alive and had a beating heart at the time of the fractures.

Inasmuch as the evidence from the first trial is legally sufficient, defendant's contention that double jeopardy barred the second trial lacks merit (see People v Conley, 192 AD3d 1616, 1620 [4th Dept 2021], lv denied 37 NY3d 1026 [2021]; People v King, 181 AD3d 1233, 1233 [4th Dept 2020], lv denied 35 NY3d 1027 [2020]; see generally People v Scerbo, 74 AD3d 1730, 1731 [4th Dept 2010], lv denied 12 NY3d 821 [2009]).

With respect to the weight of the evidence at the second trial, the defense presented two experts who disagreed with the opinions of the People's experts. A defense expert who specialized in biomechanical engineering opined that, while rare, a newborn baby's skull could be fractured in a short-distance fall, i.e., a birth into a toilet bowl. The other defense expert, a forensic pathologist, testified regarding a multitude of possible causes of stillbirth. Although the testimony from the defense experts is not incredible as a matter of law, we note that the jury exercised its right to disregard the testimony of the forensic pathologist under the falsus in uno doctrine and informed County Court of its intent to do so in a jury note (see CJI2d[NY] Credibility of Witnesses - Accept in Whole or in Part [Falsus in Uno]). “It is well settled that ‘[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury’ ” (People v Derby, 242 AD3d 1627, 1630 [4th Dept 2025], lv denied 45 NY3d 936 [2026]) and that we “generally ‘must afford deference to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ ” (People v Anderson, — NY3d —, —, 2026 NY Slip Op 00967, *1 [2026]). Here, “[w]e see no basis to disturb the jury's assessment of witness credibility” (People v Young, 243 AD3d 1303, 1306 [4th Dept 2025]; see Derby, 242 AD3d at 1630).

Defendant further contends that Penal Law § 125.05, which provides that “ ‘Person,’ when referring to the victim of a homicide, means a human being who has been born and is alive,” is unconstitutionally vague. Any contention that a statute is unconstitutional is not properly before us unless notice was provided to the Attorney General (see Executive Law § 71 [3]; People v West, 118 AD3d 1450, 1452 [4th Dept 2014], lv denied 24 NY3d 1048 [2014]; People v Craft, 57 AD3d 1388, 1388 [4th Dept 2008], lv denied 12 NY3d 757 [2009]), and the requisite notice was not given here. In any event, defendant failed to preserve that contention for our review by failing to raise it before the trial court (see West, 118 AD3d at 1452; People v Mastowski, 26 AD3d 744, 745-746 [4th Dept 2006], lv denied 6 NY3d 850 [2006], reconsideration denied 7 NY3d 815 [2006]).

Defendant further contends that the court erred in allowing a physician and nurse who treated her in the emergency room to testify at trial about their observations of defendant while undergoing treatment and statements defendant made during the course of treatment. While we disagree with defendant's primary contention that the testimony of those two witnesses should have been precluded in toto, we agree with defendant that certain portions of the testimony offered by the physician and nurse concerned information protected by the physician-patient privilege, as codified in CPLR 4504 (a).

CPLR 4504 (a) provides, in pertinent part, that “[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, [or] licensed practical nursing ․ shall not be allowed to disclose any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity.” “The privilege applies not only to information communicated orally by the patient, but also to ‘information obtained from observation of the patient's appearance and symptoms, unless the facts observed would be obvious to laymen’ ” (Dillenbeck v Hess, 73 NY2d 278, 284 [1989], quoting Fisch, NY Evidence § 544, at 361 [2d ed.]; see generally Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]).

“The rationale supporting [the statute] is that the protection of confidential information from involuntary disclosure will promote uninhibited communication between patient and physician for the purpose of obtaining appropriate medical treatment. In the succinct words of one commentator, the statute presumes that ‘privilege in the courtroom will encourage disclosure in the sickroom’ ” (People v Sinski, 88 NY2d 487, 491 [1996], rearg denied 88 NY2d 1018 [1996]). Although there are narrow exceptions to CPLR 4504 (a), “[t]hose exceptions ․ underscore that whenever the legislature has decided to limit the privilege's scope, it has done so through the enactment of specific legislation to address the particular subject matter” (People v Rivera, 25 NY3d 256, 261 [2015]).

Here, relying on the physician-patient privilege, defendant moved prior to trial, inter alia, to preclude the physician and nurse from testifying about their observations of defendant during treatment and all statements she made at the hospital to medical personnel. The court denied the motion, concluding that defendant's statements and the observations of her at the hospital were admissible under the so-called Tarasoff exception to the physician-patient privilege, which authorizes medical personnel to disclose privileged information regarding a patient where silence would pose a serious danger to a third party—in this case, the baby whom defendant was suspected of having delivered at home (see Tarasoff v Regents of Univ. of Cal., 17 Cal 3d 425, 440-442 [1976]; see also People v Bierenbaum, 301 AD2d 119, 142 [1st Dept 2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]; Rea v Pardo, 132 AD2d 442, 445 [4th Dept 1987]; MacDonald v Clinger, 84 AD2d 482, 487 [4th Dept 1982]).

The court also determined that disclosure of the privileged information to the police was mandated by Social Services Law sections 413 and 415 inasmuch as the medical personnel had reasonable cause to suspect defendant of child abuse or maltreatment. The court therefore ruled that “defendant's statements and the observations of the doctor, nurse and all responding medical professionals including the EMTs are admissible.”

At trial, both the physician and the nurse testified to incriminating statements defendant made at the hospital in response to questions relating to her diagnosis and treatment. Both witnesses also testified to information they obtained from observing defendant that would not have been obvious to a layperson, and that evidence undermined defendant's theory that the baby was not born alive. It is clear that this testimony was given in violation of the physician-patient privilege, and the People do not dispute that point. Instead, the People contend that the court properly admitted the testimony under the Tarasoff exception to the privilege. We cannot agree.

The Tarasoff exception authorized the treating physician and nurse to disclose privileged information about defendant to the police because a baby's life may have been in jeopardy and time was of the essence. The exception did not, however, authorize the physician and nurse to testify at trial some four years later about the privileged information. At that point, of course, the baby had already died and exigent circumstances no longer existed. While “[t]he protective privilege ends where the public peril begins” (Tarasoff, 13 Cal 3d at 442), the converse is also true: when the public peril ends, the privilege begins again, preventing further disclosures of confidential information without the patient's consent.

As the Court of Appeals has explained, an obligation to disclose abuse or other information to an authorized agency does not translate into permission to testify against the patient in a criminal proceeding (see Rivera, 25 NY3d at 263). It is one thing to permit medical personnel to disclose information to an agency under mandated reporting statutes, but it is “quite another to allow the introduction of those same statements ․ at a criminal proceeding, where the People seek to punish the defendant and potentially deprive [the defendant] of [their] liberty” (id.; see Sinski, 88 NY2d at 490; People v Gomez, 244 AD3d 1382, 1386 [3d Dept 2025], lv denied 45 NY3d 936 [2026]; cf. Tarasoff, 17 Cal 3d at 440-442).

We therefore conclude that defendant's statements at the hospital that were germane to diagnosis and treatment, and various observations of her by medical personnel, were “subject to the physician-patient privilege and, absent any waiver or exception (neither of which is present here), [their] admission in evidence through the testimony of defendant's [treating physician and nurse] violated [CPLR] 4504 (a)” (Rivera, 25 NY3d at 264). Specifically, the medical professionals violated CPLR 4504 (a) by testifying that defendant, upon examination in the emergency room, had a distended abdomen; her umbilical cord was “larger than it would be for a miscarriage”; her placenta did not look abnormal; when asked whether she had delivered a baby defendant said, “something came out of me”; and upon further questioning defendant said that she had put the baby in the trash.

We further agree with defendant that the error was not harmless. For a nonconstitutional error to be deemed harmless, the proof of guilt, without reference to the error, must be overwhelming and there must be “no significant probability that the jury would have acquitted [defendant] had the proscribed evidence not been introduced” (People v Kello, 96 NY2d 740, 744 [2001]; see People v Crimmins, 36 NY2d 230, 241-242 [1975]). We cannot conclude that the evidence of defendant's guilt, without reference to the error, is overwhelming, and therefore the error is not harmless (see generally Crimmins, 36 NY2d at 241-242). Indeed, we note that the jury in the first trial was unable to reach a verdict based on substantially similar evidence as that presented at the second trial.

We therefore reverse the judgment and grant defendant a new trial.

In light of our determination, we do not address defendant's remaining contentions.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court