PEOPLE v. SMITH

Ordered that the judgment is affirmed.

The defendant contends that a confession which he made during a telephone conversation with his wife should not have been admitted into evidence as it was protected by the marital privilege (CPLR 4502 [b]; CPL 60.10). Although his confession may have been made in reliance upon the trust and confidence of the marital relationship (see, People v Fediuk, 66 N.Y.2d 881, 883; Matter of Vanderbilt [Rosner — Hickey], 57 N.Y.2d 66, 73; People v Fields, 38 A.D.2d 231, 233, affd 31 N.Y.2d 713 on opn at App. Div.), we agree with the hearing court that the defendant waived the protection of the marital privilege (see, People v Melski, 10 N.Y.2d 78, 81; People v O'Connor, 85 A.D.2d 92, 97).

We also find that the defendant's guilt was established beyond a reasonable doubt upon legally sufficient evidence (see, People v Giuliano, 65 N.Y.2d 766, 768; People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932). Finally, we find no basis to substitute our discretion for that exercised by the trial court with respect to the defendant's sentence (see, People v Suitte, 90 A.D.2d 80, 86-87). Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.