People v. Drelich
506 N.Y.S.2d 746, 123 A.D.2d 441, 1986 N.Y. App. Div. LEXIS 60197 (1986)
Rule of Law:
The clergyman-penitent privilege under CPLR 4505 protects only confidential communications made to a clergyman in their professional character as a spiritual advisor for the purpose of seeking religious counsel, and the burden is on the invoking party to establish this purpose. Additionally, while police may not question a represented individual in counsel's absence without a valid waiver, such waiver may occur via telephonic consultation with counsel, and any error in admitting statements obtained in violation of this rule may be deemed harmless if duplicative or cumulative of other properly admitted evidence.
Facts:
- The defendant's 23-year-old pregnant wife was brutally stabbed to death.
- The defendant sought out Rabbi Moses David Tendler after the murder, partly because of the rabbi's "connections" in the secular world.
- The defendant claimed he spoke with Rabbi Tendler seeking counsel and spiritual advice.
- Rabbi Tendler asserted his role was strictly secular, aiming to assist the defendant in securing an attorney and negotiating a plea bargain, and repeatedly stressed he was not acting rabbinically.
- The defendant had already retained counsel on an unrelated matter at the time of the murder.
- Counsel was present when police first questioned the defendant at his home on the day of the murder and specifically told police not to question the defendant further in his absence.
- Police subsequently questioned the defendant on several occasions without counsel present, sometimes after obtaining permission to do so from counsel over the telephone, and sometimes without any prior permission.
Procedural Posture:
- The defendant was charged with murder in the second degree in Supreme Court, Kings County.
- A hearing was held at Criminal Term (trial court) to determine the applicability of the clergyman-penitent privilege to the defendant's statements to Rabbi Tendler.
- Criminal Term denied the defendant's motion to bar Rabbi Tendler's testimony, finding the disclosures were not made for religious counsel.
- During the trial, the court reopened the hearing on the privilege and, after further testimony, adhered to its earlier determination.
- A suppression hearing was held concerning statements made by the defendant to police, limited to the issue of voluntariness in a noncustodial setting.
- The court found the defendant's statements to police were voluntarily made and denied suppression on that ground.
- A jury convicted the defendant of murder in the second degree.
- The defendant appealed his conviction to the Supreme Court, Appellate Division, Second Department.
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Issue:
1. Does the clergyman-penitent privilege under CPLR 4505 apply to statements made to a rabbi when the individual primarily sought secular assistance, and the rabbi explicitly stated he was not acting in a spiritual capacity? 2. Did police violate the defendant's right to counsel by questioning him in his attorney's absence, and if so, was the admission of such statements a reversible error?
Opinions:
Majority - Mangano, J. P.
No, the clergyman-penitent privilege does not apply to the defendant's statements to Rabbi Tendler because the communications were not made for the purpose of seeking religious counsel in the rabbi's professional character as a spiritual advisor, but rather for secular assistance. Yes, some statements to police violated the defendant's right to counsel under People v. Skinner, but others did not, and any error in admitting the problematic statements was harmless. The court reasoned that the clergyman-penitent privilege is purely statutory (CPLR 4505) and did not exist at common law, requiring that communications be confidential and made to a clergyman in their spiritual capacity for the purpose of seeking religious counsel (Matter of Keenan v Gigante). The burden rests upon the party invoking the privilege to establish this purpose. Here, the trial court found, and the appellate court affirmed, that the defendant's disclosures were for the secular purpose of seeking legal assistance and negotiation, not for religious counsel. The rabbi's repeated statements disclaiming a spiritual role and the defendant's admission of seeking the rabbi for his "connections" supported this finding. Regarding the right to counsel, the court acknowledged that under People v. Skinner, police cannot question a represented individual on a related matter in the absence of counsel, regardless of custody, without a valid waiver in counsel's presence, and this rule applies retroactively. The court found no violation for statements made in counsel's presence or after counsel gave telephonic permission, as telephonic contact satisfies the requirement of an opportunity to consult with counsel (People v Beam; People v Yut Wai Tom). For statements made without prior waiver, the court determined their admission was harmless error because their content was either duplicative of properly admitted statements or cumulative of other properly received evidence (People v Krom; People v Flecha; People v Sanders).
Analysis:
This case clarifies the narrow scope of the clergyman-penitent privilege under CPLR 4505, emphasizing that the purpose of the communication (spiritual vs. secular assistance) and the nature of the clergyman's role (spiritual advisor vs. secular helper) are critical in determining its applicability. It also demonstrates the application of New York's strict right to counsel rule from People v. Skinner, showing that telephonic waivers by counsel can be valid and that violations of the rule may be deemed harmless error if the improperly admitted statements are redundant. This nuanced application of both privileges offers important guidance for future cases involving communications with religious figures and police interrogations of represented individuals.
