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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 20
The People &c.,
            Appellant,
        v.
David Rivera,
            Respondent.




          David P. Stromes, for appellant.
          Lloyd Epstein, for respondent.
          New York State Psychiatric Association et al., amici
curiae.




PIGOTT, J.:
          Defendant, while seeking treatment from a psychiatrist,
admitted to sexually abusing an 11-year-old relative.   The
psychiatrist notified the Administration for Children's Services
(ACS) of defendant's admission.   Subsequently, at defendant's
criminal trial, over defendant's objection, the trial court

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permitted the psychiatrist to testify that defendant had made the
admission.    The issue on this appeal is whether the trial court's
ruling ran afoul of the physician-patient privilege (see CPLR
4504 [a]).    We hold that it did.
                                  I.
             On November 1, 2007, the child revealed to her
pediatrician, in her mother's presence, that she had been
sexually abused by defendant.    The pediatrician reported the
abuse to ACS.    The child's mother relayed the accusation to
defendant's mother, who told defendant of the child's accusation.
Shortly after receiving word of the child's allegation, defendant
was taken by ambulance to the psychiatric emergency room at
Columbia Presbyterian Hospital (CPH), complaining of depression
and suicidal ideation.    While being treated, defendant told his
psychiatrist that he had sexually abused the child.
             The following day, the child was medically examined at
a Child Advocacy Center (CAC).    While there, she spoke with a
detective, who, during a subsequent investigation, learned that
defendant had been admitted to CPH.      The detective obtained a
court order requiring CPH to notify the police upon defendant's
release.   Four weeks later, following his discharge, defendant
was arrested and charged with, among other things, predatory
sexual assault against a child (Penal Law § 130.96).
             Prior to trial, the People moved for the issuance of a
subpoena duces tecum seeking defendant's psychological records


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from CPH for in-camera review by the trial court.    Specifically,
the People sought records that included any admission defendant
may have made concerning the crimes charged in the indictment,
which, they argued, could be released as either an exception to
or waiver of the physician-patient privilege.    Defendant
countered that the disclosure of the medical records and any
testimony by the psychiatrist concerning defendant's treatment
was barred by the physician-patient privilege pursuant to CPLR
4504 (a), and that defendant had not waived that privilege.
             Following the in-camera review of the records, Supreme
Court held that the admissions defendant made to his psychiatrist
were privileged because they were made in the course of diagnosis
and treatment of his condition.    However, the court, while
refusing to allow "the full extent of defendant's admissions" to
be used, held that, because the psychiatrist had disclosed the
reported abuse to ACS, the fact that defendant had admitted to
the abuse was admissible at trial.
             At trial, the child testified concerning the abuse she
sustained at the hands of defendant.     The People then called
defendant's psychiatrist, who testified that defendant admitted
to having sexually abused the child.     Defendant, testifying on
his own behalf, denied committing any sexual abuse.    During
summation, the People referred to the psychiatrist's testimony
and, during deliberations, the jury requested a read-back of that
testimony.    Defendant was convicted as charged and sentenced to a


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term of 13 years to life in prison.
             The Appellate Division unanimously reversed the
judgment of Supreme Court and remanded for a new trial, holding
that Supreme Court erred in permitting the psychiatrist to
testify concerning defendant's admissions of sexual abuse and
that the error was not harmless (99 AD3d 535, 535 [1st Dept
2012]).   A Judge of this Court granted the People leave to appeal
and we now affirm.
                                  II.
             The narrow issue on this appeal is whether the trial
court erred in allowing defendant's psychiatrist to testify
concerning defendant's admission that he abused the child.1     We
hold that the trial court's ruling violated the physician-patient
privilege.
             CPLR 4504 (a) provides, as relevant to this appeal,
that "[u]nless the patient waives the privilege, a person
authorized to practice medicine . . . shall not be allowed to
disclose any information which he [or she] acquired in attending
a patient in a professional capacity, and which was necessary to


     1
       We do not address the propriety of the Appellate
Division's determination that "the psychiatrist made a proper
disclosure of the abuse" (99 AD3d at 535), nor is it necessary
for us to address whether this Court should adopt the so-called
"Tarasoff doctrine" (see Tarasoff v Regents of Univ. of
California, 17 Cal3d 425, 551 P2d 334 [1976]), which requires
mental health professionals to disclose a patient's confidential
information to third parties when the professional determines
that the patient poses a "serious danger of violence to another"
(17 Cal3d at 431, 551 P2d at 340).

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enable him [or her] to act in that capacity."   The People do not
argue that defendant waived the privilege, nor do they dispute
that there was a "professional relationship" between defendant
and his psychiatrist (see e.g. People v Sliney, 137 NY 570, 580
[1893]).   Nor do the People contend that the information conveyed
by defendant to his psychiatrist was not necessary for his
treatment (see People v Decina, 2 NY2d 133, 143 [1956]).      Rather,
the People claim that, because defendant's admission related to
the sexual abuse of a child, it was not privileged since
defendant had no reason to believe that it would remain
confidential (see generally id. at 145).
           Regardless of whether a physician is required or
permitted by law to report instances of abuse or threatened
future harm to authorities, which may involve the disclosure of
confidential information, it does not follow that such disclosure
necessarily constitutes an abrogation of the evidentiary
privilege a criminal defendant enjoys under CPLR 4504 (a).
Whereas confidentiality is an ethical requirement of physicians
"that is essential to psychiatric treatment . . . and is based in
part on the special nature of psychiatric therapy as well as on
the traditional ethical relationship between physician and
patient" (The Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry, Section 4, Annotation 1, at
6 [2013 ed]), the physician-patient privilege is a rule of
evidence that protects communications and medical records (see


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Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]).     The
privilege serves several objectives:   it encourages unrestrained
communication between a patient and his or her medical provider
so that the patient may obtain diagnosis and treatment without
fear of embarrassment over potential disclosure; it encourages
physicians to be forthright in recording their patients'
confidential information; and it protects "patients' reasonable
privacy expectations against disclosure of sensitive personal
information" (Matter of Grand Jury Investigation in N.Y. County,
98 NY2d 525, 529-530 [2002] [citations omitted]).
          The People argue that because the Legislature has
carved out several exceptions to the physician-patient privilege,
defendant could not reasonably have expected his statements to
remain confidential in the context of a criminal proceeding.
Those exceptions, however, underscore that whenever the
Legislature has decided to limit the privilege's scope, it has
done so through the enactment of specific legislation to address
the particular subject matter (see Matter of Grand Jury
Investigation of Onondaga County, 59 NY2d 130, 136 [1983]).      If
the Legislature had, in fact, decided to create an additional
exception permitting a criminal defendant's mental health
professional to testify against the defendant in a criminal
proceeding, it would have done so.    Indeed, we have noted that,
given the number of statutory exceptions to the privilege, "the
legislative concept [is clear] that exceptions to the


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statutorily-enacted physician-patient privilege are for the
Legislature to declare" (Matter of Grand Jury Investigation of
Onondaga County, 59 NY2d at 136), and we need look no further
than section CPLR 4504 itself which contains those exceptions
(see CPLR 4504 [b] [requiring certain physicians and other health
professionals "to disclose information indicating that a patient
who is under the age of sixteen years has been a victim of a
crime"], [c] [requiring physicians and nurses "to disclose any
information as to the mental or physical condition of a deceased
patient privileged under subdivision (a)" in certain designated
circumstances]).
          When the Legislature has sought to either limit or
abrogate the privilege beyond the confines of section 4504, it
has been clear in its intent (see Social Services Law § 384-b [3]
[h] [privilege not available in a proceeding seeking an order
committing the guardianship and custody of a destitute or
dependent child]; Social Services Law § 413 [identifying class of
mandatory reporters of suspect child abuse and maltreatment];
Social Services Law § 415 [providing that reports of suspected
child abuse or maltreatment must be made in writing and "shall be
admissible in evidence in any proceedings relating to child abuse
or maltreatment"]); Family Ct Act § 1046 [a] [vii] [stating that
the privilege "shall (not) be a ground for excluding evidence
which would otherwise be admissible" in abuse and neglect
proceedings]; Mental Hygiene Law § 81.09 [d] [permitting a court


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evaluator in guardianship proceedings to apply for permission to
inspect medical and psychiatric records of the alleged
incapacitated persons, and allowing the court to order such
disclosure notwithstanding the physician-patient privilege];
Public Health Law § 3373 [stating that "for purposes of duties
arising out of" article 33, relating to controlled substances,
"no communication made to a practitioner shall be deemed
confidential within the meaning of the civil practice law and
rules relating to confidential communications between such
practitioner and patient"]).
          Although the Legislature may not always explicitly set
forth its intention to limit or abrogate the privilege by
expressly cross referencing CPLR 4504, its intent is evident from
the directives of the particular statute (see Penal Law § 265.25
[requiring attending physicians to report to police every case of
"any injury arising from or caused by the discharge of a gun or
firearm" and "a wound which is likely to or may result in death
and is actually or apparently inflicted by a knife, icepick or
other sharp or pointed instrument"]; Penal Law § 265.26
[requiring physicians to report certain burn injuries to the
office of fire prevention and control]; Public Health Law § 2101
[1] [requiring physicians to "immediately give notice of every
case of communicable disease" to the proper authorities]).
          We have acknowledged that although the physician-
patient privilege is in derogation of the common law, it should


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be afforded a "broad and liberal construction to carry out its
policy" of encouraging full disclosure by patients so that they
may secure treatment (Matter of Grand Jury Investigation of
Onondaga County, 59 NY2d at 134 [citation and internal quotations
omitted]).    Conversely, exceptions that limit the privilege are
afforded a narrow construction (see People v Sinski, 88 NY2d 487,
492 [1996]).    From these statutorily-enacted exceptions, it is
evident that the Legislature has made considered judgments in
deciding when the physician-patient privilege should give way to
what it deems to be greater interests, namely, proceedings
involving allegations of child abuse, maltreatment and neglect,
and guardianship of allegedly incapacitated persons.    The
Legislature has determined that the protection of children is of
paramount importance, so much so that it has either limited or
abrogated the privilege through statutory enactments.
             The People erroneously assert that these exceptions
place offenders on notice that the physician-patient privilege
does not apply to statements or admissions triggering a duty to
disclose.    But it is one thing to allow the introduction of
statements or admissions in child protection proceedings, whose
aim is the protection of children, and quite another to allow the
introduction of those same statements, through a defendant's
psychiatrist, at a criminal proceeding, where the People seek to
punish the defendant and potentially deprive him of his liberty.
Evidentiary standards are necessarily lower in the former


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proceedings than in the latter because the interests involved are
different.    Thus, the relaxed evidentiary standards in child
protection proceedings lend no credence to the People's argument
that defendant should have known that any admission of abuse he
made to his psychiatrist would not be kept confidential.
             The Legislature has not created an express exception
permitting a psychiatrist to testify concerning an admission made
by a criminal defendant during the course of a professional
relationship where the admission was made for purposes of
diagnosis and treatment.    Even if a patient is cognizant of his
psychiatrist's reporting obligations under child protection
statutes, that does not mean that he should have any expectation
that statements made during treatment will be used against him in
a criminal matter.
             Defendant, who was admitted to CPH based upon the
diagnoses of depression and suicidal ideation, allegedly made
admissions to his psychiatrist for the purpose of treatment.
Thus, defendant's admission was subject to the physician-patient
privilege and, absent any waiver or exception (neither of which
is present here), its admission in evidence through the testimony
of defendant's psychiatrist violated section 4504 (a).
                                III.
             The People next claim that, even if defendant's
admission was privileged, we may nonetheless decline to enforce
the privilege if its invocation would undermine section 4504's


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policy objectives.   According to the People, enforcement of the
physician-patient privilege after a disclosure has been made does
not promote the purposes of encouraging communication or
protecting privacy but, rather, runs counter to the Legislature's
policies and practices that are aimed at preventing child abuse
and bringing abusers to justice.
          We reject the People's suggestion that we curtail the
privilege in this regard.   As stated above, the Legislature has
crafted exceptions to the privilege in child protection
proceedings in order to advance the important interest in
protecting the welfare of children.    Moreover, the cases cited by
the People in support of their contention that we may imply from
those enactments that the physician-patient privilege was not
meant to apply to instances where a disclosure is made are
inapposite.   In each of those cases, the Legislature had created
a statutory scheme that charged a governmental body with
enforcing certain health care laws, and we held that the need for
the disclosure of confidential records was implied from the
powers that the Legislature conferred on the governmental body
(see Matter of New York City Health & Hosps. Corp. v New York
State Commn. of Correction, 19 NY3d 239 [2012] [finding an
implied exception to the physician-patient privilege from the
Legislature's express provisions that granted a commission the
power to investigate inmate deaths]; Matter of Camperlengo v
Blum, 56 NY2d 251 [1982] [finding an implied exception to the


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physician-patient privilege where the State Department of Social
Services sought medical records as part of a Medicaid fraud
investigation]; People v Fuller, 24 NY2d 292 [1969] [finding an
implied exception to the physician-patient privilege under the
Narcotics Control Act of 1966 that allowed an arrestee's medical
records and statements to physicians in evidence at the addiction
hearing to determine if the arrestee qualified for the program,
but did not permit the use of such material at the arrestee's
criminal case]).
                                   IV.
            Finally, contrary to the People's contention, the
testimony by defendant's psychiatrist that defendant admitted to
the abuse was not harmless.   Apart from the victim's testimony,
there was no eyewitness evidence to the abuse, and there was
little, if any, physical evidence establishing it.         Moreover, the
prosecutor relied on the psychiatrist's testimony in arguing for
defendant's guilt and, during deliberations, the jury made one
request, namely, it asked for the psychiatrist's response when
she was asked if defendant admitted to her that he sexually
molested the child.
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *    *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Pigott. Chief Judge Lippman
and Judges Read, Rivera, Stein and Fahey concur. Judge Abdus-
Salaam took no part.

Decided May 5, 2015

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