SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1051 

KA 08-01053 

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROBERT J. HARTLE, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Joseph D. Valentino, J.), rendered March 7, 2008. The judgment

convicted defendant, upon a jury verdict, of murder in the first

degree (two counts), murder in the second degree and arson in the

third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of two counts of murder in the first degree (Penal

Law § 125.27 [1] [a] [viii]; [b]), and one count each of murder in the

second degree (§ 125.25 [1]), and arson in the third degree (§ 150.10

[1]). We reject defendant’s contention that Supreme Court erred in

allowing a medical professional to testify to statements defendant

made to her while being examined at the hospital after his arrest. 

Defendant contends that his statements were subject to the physicianpatient privilege despite the presence of a police investigator in the

examination room because he was in custody and was not able to tell

the investigator to leave the room. The physician-patient privilege,

which is “entirely a creature of statute” (Dillenbeck v Hess, 73 NY2d

278, 283), is set forth in CPLR 4504 (a), and is applicable to

criminal proceedings by virtue of CPL 60.10 (see People v Wilkins, 65

NY2d 172, 176). In determining whether the physician-patient

privilege applies, we must consider “whether in the light of all the

surrounding circumstances, and particularly the occasion for the

presence of the third person, the communication was intended to be

confidential” (People v Decina, 2 NY2d 133, 145; see State of New York

v General Elec. Co., 201 AD2d 802, 803). Here, we conclude that

defendant did not meet his burden of establishing that the privilege

applied (see Decina, 2 NY2d at 141), because there was no showing that

he intended that his statements be confidential. Defendant was aware
-2- 1051 

KA 08-01053 

of the investigator’s presence, but he did not ask to speak with the

medical professional privately. Additionally, defendant made numerous

statements to others that were similar to the statements he made to

the medical professional, both before and after making them to her. 

In any event, even if the physician-patient privilege applied, we

conclude that any error in allowing the testimony is harmless. The

evidence of guilt is overwhelming, and there is no significant

probability that the absence of the error would have led to an

acquittal (see People v Ballard, 173 AD2d 480, 480, lv denied 78 NY2d

961; see generally People v Crimmins, 36 NY2d 230, 241-242).

We reject defendant’s further contention that he was denied

effective assistance of counsel. Defendant, relying on People v

Colville (20 NY3d 20, 32), contends that he was denied the “expert

judgment of counsel” when defense counsel decided not to request that

the court charge murder in the second degree as a lesser included

offense of murder in the first degree. Contrary to defendant’s

contention, the record does not establish that defense counsel

deferred to defendant the decision not to request the lesser included

offense. Defense counsel requested a recess to confer with defendant

regarding lesser included offenses and, after that conference, defense

counsel stated to the court that, “[a]fter consulting with my client,

we will not be requesting any chargedowns with regard to [the first

degree murder counts].” Therefore, there is “no indication in the

record that defense counsel’s position differed from” defendant’s

position (People v Gottsche, 118 AD3d 1303, 1304).

Entered: November 14, 2014 Frances E. Cafarell

Clerk of the Court