Opinion
April 3, 1989
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the judgment is affirmed.
The trial court permitted two police officers to testify to an inculpatory statement which they overheard the defendant make to his mother at the police precinct. The defendant asserts that the admission of this evidence was error, in violation of a parent-child privilege. We note that no objection was made to the introduction of this testimony on the ground of privilege, and hence any issue of law with respect to the defendant's claim is not preserved for our review. In any event it did not constitute error (see, People v. Harris, 57 N.Y.2d 335, 343).
Generally, communications made in the presence of third parties are not privileged from disclosure (see, People v. Harris, supra; Richardson, Evidence § 413 [Prince 10th ed]). In speaking to his mother in the presence of police officers, the defendant did not intend his communication to be confidential (see, People v. Harris, supra). Moreover, there is nothing in the record to suggest that the statement here had been in any way induced, provoked or encouraged by the police officers (see, People v Rivers, 56 N.Y.2d 476, 479-480) or that the defendant's mother was acting as a police agent at the time she questioned her son (see, e.g., Massiah v. United States, 377 U.S. 201; People v Cardona, 41 N.Y.2d 333, 335). The Sixth Amendment right to counsel "is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached" (Maine v. Moulton, 474 U.S. 159, 176).
We have considered the defendant's remaining contentions and find them to be without merit. Mollen, P.J., Kooper and Sullivan, JJ., concur.
The defendant's contention that the inculpatory statement made to his mother at the precinct and overheard by two police officers should have been suppressed (see, People v. Harrell, 87 A.D.2d 21, affd 59 N.Y.2d 620) was not made before the suppression court. I therefore agree with my colleagues insofar as they hold that this contention is not now properly before us (see, People v. Harrell, supra; see also, People v. Tutt, 38 N.Y.2d 1011; People v. Rondan, 116 A.D.2d 750, 752, lv denied 67 N.Y.2d 950). And since I also agree that the defendant's remaining contentions are without merit, I concur in affirmance of the conviction.