Opinion
December 23, 1994
Appeal from the Erie County Court, D'Amico, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: By failing to move to suppress items seized from the 1977 Chevrolet Impala and room 112 at the Red Carpet Inn or to object to the admission of that evidence at trial, defendant waived his challenge to the warrants authorizing those searches (see, People v Bertolo, 65 N.Y.2d 111; People v Scott, 201 A.D.2d 867, lv denied 83 N.Y.2d 858). Although defendant moved to suppress evidence "seized from the defendant or from his home", his papers fail to set forth sworn allegations of fact supporting the motion (see, CPL 710.60). Thus, defendant was not entitled to a hearing (see, People v Mendoza, 82 N.Y.2d 415; People v Scott, supra).
We reject defendant's contention that the court erred in allowing a witness to read to the jury a letter from defendant to his wife that was intercepted by the wife's cellmate and turned over to the prosecution. "A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage" (CPLR 4502 [b]). That privilege has been held to apply to written communications between spouses (People v Daghita, 299 N.Y. 194). Not all communications between husband and wife are confidential, but rather, only those "'induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship'" (Matter of Vanderbilt, 57 N.Y.2d 66, 73). Here, the letter was sufficiently related to a conspiracy to cover up the murder that it may be said to have been made in pursuit of a criminal enterprise (see, People v Watkins, 63 A.D.2d 1033, cert denied 439 U.S. 984).
We have reviewed the other issues raised by defendant and conclude that they are without merit.