People v. Fields , 328 N.Y.S.2d 542 ( 1972 )

Kupferman, J. (dissenting in part).

While the discussion is academic as to this defendant, because we unanimously affirm the longer of the concurrent sentences, I must dissent from the determination as to the marital privilege and on that aspect alone.

There is no general incompetency in this State for one spouse to testify against the other. It applies only to statements ‘ ‘ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship ” (Poppe v. Poppe, 3 N Y 2d 312, 315).

That the presumption of confidentiality may be rebutted is clear from People v. Oyola (6 N Y 2d 259, 265 [1959]) and Poppe v. Poppe (supra).

The majority here disqualifies the testimony purely on the technical basis of marriage. There is no germ of a relationship, other than that in derogation of the marriage, to otherwise sustain such a result. The marriage certificate here, as Samuel Goldwyn once said about an oral contract, is not worth the paper it is written on.

There is no need to go into the subject of fault in determining that the so-called marriage here has no sanctity (cf. Gleason v. Gleason, 26 N Y 2d 28, 39 [1970]).

Markewich, J. P., and Murphy, J., concur with Sieuer, J.; Kupferman, J., dissents in part in an opinion, in which Nunez, J., concurs.

Judgment, Supreme Court, New York County, rendered on July 16, 1970, modified, on the law, by reversing and vacating the conviction for assault in the second degree and remanding the case for a new trial on that charge; and otherwise affirmed.