
    The People of the State of New York, Respondent, v Edward J. Smith, Appellant.
   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 NY2d 881, 883; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66, 73; People v Fields, 38 AD2d 231, 233, affd 31 NY2d 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 NY2d 78, 81; People v O’Connor, 85 AD2d 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 NY2d 766, 768; People v Malizia, 62 NY2d 755, 757, cert denied 469 US 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 AD2d 80, 86-87). Brown, J. P., Rubin, Lawrence and Kooper, JJ., concur.  