People v Rivera

People v Rivera 2012 NY Slip Op 06850 Decided on October 11, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 11, 2012
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.
8270 2681/08

[*1]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.

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, 551 P2d 334, 340, 341, 342-343 [1976]; People v Bierenbaum, 301 AD2d 119, 141-142 [1st Dept 2002], lv denied 99 NY2d 626 [2002], cert denied 540 US 821 [2003]), the Tarasoff disclosure did not operate as a waiver of the physician-patient privilege (see United States v Hayes, 227 F3d 578 [6th Cir 2000]; but see United States v Auster, 517 F3d 312 [5th Cir 2008], cert denied 555 US 840 [2008]). This privilege (see CPLR 4504) is broadly construed, and it does not contain a general public interest exception (see People v Sinski, 88 NY2d 487, 494-495 [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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2012

CLERK