In response to the question Detective E posed to the ABC Hospital administrator as to whether anyone had recently been treated for “any kind of slash wounds to the face,” the administrator disclosed the patient’s name and address and that the injury patient had been stitched on the left side of his face. Defendant claims this information was privileged because it revealed the cause of his facial wound, a slashing, and that it was acquired through the application of professional medical skill or knowledge. This is pure hyperbole, belied by the record. Defendant’s facial wound, a fresh scar that extended from below his ear almost to his chin, was conspicuous to the average layperson. There was no medical skill or knowledge behind the ascertainment of that information. The hospital administrator’s identification of defendant’s injury and its location, and that he had received facial stitches, revealed no more than what had been readily observable.
Here, there is no issue as to whether the injury at issue was discernible by a layperson. The request identified the nature of the wound, a slash, and its location, the face. Defendant’s reliance on case law, which involved a broad subpoena requesting information on persons treated for stab wounds or other wounds caused by a knife, without identifying the specific nature of the wound or its location, is similarly misplaced. In each of these cases, a medical determination was required to frame a response. That is not the case here.
Moreover, even were we to find a violation of the privilege, suppression of the information imparted would not be required. While it is axiomatic that when a defendant’s constitutional rights are violated, the fruits of such violation must be suppressed, a violation of a statute may be remedied by suppression only if the purpose of the statute is to give effect to a constitutional right.
While, in certain circumstances, federal courts have found confidential medical information to be entitled to constitutional privacy protection, none of these cases held that the admission of evidence obtained in violation of the physician-patient privilege was constitutionally impermissible under the exclusionary rule.
In any event, even if both the information from ABC Hospital and the identifications should have been suppressed, any error in their admission was harmless. The evidence of defendant’s guilt, consisting of in-court eyewitness identifications of defendant as one of the shooters, testimony by one of the eyewitnesses as to the motive for the shooting and defendant’s major role in preparing for it, testimony corroborating the accounts of the shooting and the events preceding it, and the additional confirmatory police, ballistics and medical evidence, was overwhelming. Thus, the admission of Detective E’s testimony that defendant was treated at ABC Hospital for a slash wound, as well as his and C’s testimony about the lineup identification, even if erroneous, could not have affected the verdict and was harmless beyond a reasonable doubt.
Defendant also argues that the lineup was tainted by the unduly suggestive second photo array, which did not include the second person C had recognized in the first photo array, and that the in-court identification was tainted by this factor as well as defendant’s relative youth compared to the other men in the lineup. This claim is meritless. In the first array, displayed in a police vehicle with pretty bad lighting conditions in the dark early morning hours, C viewed a black and white photograph of defendant, several years old. Although indicating recognition of defendant and another person, C wasn’t too sure and didn’t want to say yes or no. Instead, C asked to see a more recent photograph or a live person under better lighting conditions. Thus, in reality, C did not identify anyone in the first photo array.
In the second array, displayed three days later at his home, C viewed a color photograph of defendant taken the day before and identified him immediately. Defendant’s photograph was in a different position from the one included in the first array. While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures. The procedure is suggestive only when the witness is repeatedly subjected to the same image of the defendant.
The procedure employed here was not suggestive. The photographs of defendant in the two arrays differed, the one in the first array being about two years older than the one in the second and was black and white, while the photograph in the second was in color. Defendant’s photographs were in different positions in the two arrays. This is not like the cases cited by defendant where identical photographs were included in successive arrays displayed in quick succession. Thus, the lineup and in-court identifications were properly admitted in evidence.
Accordingly, the judgment of the Supreme Court, Bronx County, rendered April 1, 2004, convicting defendant, after a jury trial, of manslaughter in the second degree and sentencing him to a term of 5 to 15 years, should be affirmed.