Opinion
277 KA 16–00759
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Devin D. ISIDORE, Defendant–Appellant.
TULLY RINCKEY, PLLC, ROCHESTER (PETER J. PULLANO OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TULLY RINCKEY, PLLC, ROCHESTER (PETER J. PULLANO OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
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 attempted predatory sexual assault against a child ( Penal Law §§ 110.00, 130.96 ). We reject defendant's contention that Supreme Court erred in admitting in evidence the results of his medical examination while incarcerated, which showed that he had chlamydia. Contrary to defendant's contention, the physician-patient privilege does not apply here. The physician-patient privilege "is not absolute ... The Legislature has enacted a number of narrow exceptions abrogating it for various public policy reasons" ( People v. Sinski , 88 N.Y.2d 487, 491, 646 N.Y.S.2d 651, 669 N.E.2d 809 [1996], rearg. denied 88 N.Y.2d 1018, 649 N.Y.S.2d 384, 672 N.E.2d 610 [1996] ), and Public Health Law § 2101(1), requiring disclosure of communicable diseases, including chlamydia (see 10 NYCRR 2.1 [a] ), is one of them (see Sinski , 88 N.Y.2d at 492, 646 N.Y.S.2d 651, 669 N.E.2d 809 ; Thomas v. Morris , 286 N.Y. 266, 269, 36 N.E.2d 141 [1941] ). We further agree with the court that Public Health Law § 2306 did not prohibit disclosure of the medical records inasmuch as the relevant medical records were released "by court order in a criminal proceeding" (id. ).
We reject defendant's contention that he was deprived of a fair trial by prosecutorial misconduct on summation. "The allegedly improper comments were either a fair response to defense counsel's summation or fair comment on the evidence" ( People v. Easley , 124 A.D.3d 1284, 1285, 1 N.Y.S.3d 640 [4th Dept. 2015], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 523, 37 N.E.3d 1166 [2015] [internal quotation marks omitted] ). Even assuming, arguendo, that some of the prosecutor's comments were improper, we conclude that " ‘they were not so egregious as to deprive defendant of a fair trial’ " ( People v. Stanley , 108 A.D.3d 1129, 1131, 970 N.Y.S.2d 136 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ; see People v. McEathron , 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [4th Dept. 2011], lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ). Contrary to defendant's further contention, the court did not abuse its discretion in precluding certain evidence of third-party culpability inasmuch as it was speculative (see generally People v. Powell , 27 N.Y.3d 523, 531, 35 N.Y.S.3d 675, 55 N.E.3d 435 [2016] ; People v. Schulz , 4 N.Y.3d 521, 529, 797 N.Y.S.2d 24, 829 N.E.2d 1192 [2005] ). The sentence is not unduly harsh or severe.