In October 2001, defendant and JC got into a fight over a woman, as a result of which defendant’s suffered an injury on his face (a cut from the left ear to his chin). Defendant was treated at ABC Hospital for his wound, which was stitched and bandaged. That incident provided the impetus for a subsequent shooting incident that led to the death of X. The primary issue on appeal from defendant’s conviction for that homicide is his injury claim that certain information provided by a ABC Hospital administrator as to the treatment of a person for a facial wound was obtained in violation of the statutory physician-patient privilege, as it relates to defendant. As a result, he argues, the information obtained from the violation and its fruits-his arrest and identification from a photo array and in a lineup-implicated a constitutionally protected right and must be suppressed.
The suppression hearing adduced the following evidence. Assigned to the shooting death of 16-year-old X, which had occurred at Eastburn Avenue and the service road of the Cross-Bronx Expressway on the morning of October 17, 2001, Detective E learned from the victim’s aunt that the word on the street was that the killing was in revenge for a slashing of a male black at a certain Club several days earlier. JC, the slasher, told Detective E that he had heard that the shooters were some black guys from around 168th Street and College Avenue. Detective E also interviewed C, who related that at about one o’clock on the morning of the shooting, he had heard gunshots and saw a “male black” with a gun pursue a “young Spanish boy” down Weeks Avenue toward the Cross-Bronx Expressway.
On October 18, Detective E went to ABC Hospital and asked an administrator, Ms. BB, “if there were any male blacks that were treated on October 13 for any kind of slash wound to the face” or “if anyone came in for a slashing to the face on that date, October 13th.” Ms. BB gave Detective E an admission slip with defendant’s name and address, xxx Barnes Avenue, and told him that defendant had received stitches on the left side of his face. That same day Detective E showed C a computer-generated black and white photo array containing a “couple of years old” photograph of defendant. C recognized two people in the array, one of whom was defendant, but he “wasn’t too sure” of his identification and “didn’t want to say yes or no” because it was nighttime and the light in the police car was “pretty bad.” C asked to see a more recent photograph or a live person under better lighting conditions.
On October 20, he saw defendant at 168th Street and Findlay Avenue. As the detective approached, defendant removed a silver gun from his waistband and threw it into a garbage can. The detective arrested defendant, who had a “fresh,” “long” scar from below his ear to close to his chin on the left side of his face, and retrieved the gun, a loaded .357 magnum.
The following day, Detective E went to C’s home and showed him a new photo array containing defendant’s arrest photograph, but not the photograph of the other person C had previously recognized in the first array. This time, C recognized defendant’s photograph right away. That same day, four hours later, C viewed a lineup at the Bronx Homicide Task Force. Although the five fillers ranged in age from 30 to 35, and defendant was 23 at the time, Detective E, who would not have conducted the lineup if the fillers had not fit defendant’s description, thought they “all looked similar.” After viewing the lineup for a few seconds, C identified defendant.
In urging suppression of the pretrial identifications as fruit of the poisonous tree, defendant argued that the information obtained from ABC Hospital violated defendant’s physician-patient privilege and his right to privacy under the Fourth Amendment. injury Defendant also argued that the second photo array and lineup were suggestive because only defendant, and not the second person whom C had recognized in the first photo array, appeared in them.
The court, implicitly finding a statutory violation, determined that a breach of the physician-patient privilege does not implicate a constitutional right and that, hence, evidence so obtained need not be suppressed. The court also concluded that the second photo array was not improperly suggestive, noting that C viewed two entirely different photographs of defendant in different positions in the two arrays, one taken approximately two years before the other, and he was unable to make an identification in the first array.
As to defendant’s claim with respect to the information obtained by the police from the administrator at ABC Hospital, the physician-patient privilege, which “generally does not extend to information obtained outside the realms of medical diagnosis and treatment” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 ), was not violated. The privilege is limited to “information acquired by the medical professional `through the application of professional skill or knowledge, and seeks to protect confidential communications, not the mere facts and incidents of a person’s medical history. The privilege is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge.
To Be Cont…