People v. Carmona

• Citation: 606 N.Y.S.2d 879,627 N.E.2d 959,82 N.Y.2d 603
• Parties: , 627 N.E.2d 959 The PEOPLE of the State of New York, Respondent, v. Elias CARMONA, Appellant.
• Decision Date: 20 December 1993
• Court: New York Court of Appeals

Page 879

606 N.Y.S.2d 879

82 N.Y.2d 603, 627 N.E.2d 959

The PEOPLE of the State of New York, Respondent, v. Elias CARMONA, Appellant.

Court of Appeals of New York.

Dec. 20, 1993.

[82 N.Y.2d 605] [627 N.E.2d 960] Gary E. Eisenberg, Monroe, for appellant.

Carl A. Vergari, Dist. Atty. of Westchester County, White Plains (Bruce Edward Kelly and Maryanne Luciano, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

On March 15, 1987, Olga Estremera was killed in defendant's apartment. Following that slaying, defendant fled to Miami, Florida, where he confessed to police after consulting with two clergymen. The issue in this appeal from the affirmance of defendant's homicide conviction is whether the inculpatory contents of his conversations with the clergymen were properly admitted against him at trial. Resolution of this issue requires consideration of whether those conversations were privileged under CPLR 4505 and, if so, whether the courts below properly concluded that defendant's privilege had been waived when defendant, who was by then the subject of an outstanding bench warrant, turned himself in and, in essence, told the authorities what he had told the two clergymen.

I.

The privilege question was considered in limine during defendant's pretrial Mapp-Huntley- Wade hearing. At that time, Detective Julio Torres, the Miami officer who took defendant's confession, testified that the police had been contacted by a Reverend Hernandez, who stated that he was with someone who wanted to confess to a New York murder. While one officer went to pick that individual up, Torres discovered that the person in question was the subject of an arrest warrant in New York that had been issued in connection with the Estremera homicide.

When defendant arrived at the Miami police station, Torres administered Miranda warnings and, after obtaining "waivers" of defendant's Miranda rights, elicited a detailed statement about how defendant had strangled Estremera in New York and had then fled the jurisdiction. Torres testified that, during his interview with defendant, defendant told him that he had given the same inculpatory information to Reverend Hernandez and one of Hernandez's associates, Reverend Mimoso. By stipulation, Torres was permitted to read his police report into the record.

Torres's report recounted an interview between Torres and William Jaramillo, who had met defendant and spoken with him shortly after defendant had arrived at the bus terminal in Miami. The report stated:

"[Defendant] told [Jaramillo] * * * that he had a problem[,] * * * that he was a crack dealer and had killed someone. * * * During the time that [defendant] conversed with [Jaramillo], [defendant] cried.

"[Jaramillo] is a member of Rev. Hernandez's church and while he talked to [defendant], he talked about God. [Defendant] told him that he had grown up in the church and he became involved in dealing drugs when he left the church. [Jaramillo] then referred [defendant] to Pastor Hernandez."

Torres, who had interviewed Reverends Hernandez and Mimoso, also testified that, according to the two clergymen, defendant had agreed to surrender himself after "they talked to him and * * * convinced him that the right way to do it was to be remorseful about it, and [told him] that if he was going to [be] following the rules of God, * * * the right thing was to turn himself in." Also admitted were the transcripts of sworn statements by Hernandez and Mimoso, which had been given to Detective Torres when he questioned the two ministers. Hernandez's statement indicated that he had had a telephone conversation with defendant before meeting him in which defendant stated "that he had a problem and that he needed spiritual help." According to both Hernandez's and Mimoso's statements, defendant first "opened up" to Hernandez when the two men were talking in Hernandez's garden after Hernandez and Mimoso had taken defendant to a church service. Defendant subsequently told Reverend Mimoso his inculpatory story at Reverend Hernandez's urging.

A sworn statement given by defendant to Detective Torres on the day he surrendered was also admitted at the hearing. In this statement, defendant described how he had decided to turn himself in because the "reverends * * * could not accept [him since he] was not in good standing in their laws." Defendant further described how he had "prayed and * * * was crying a lot" before he made the final decision.

On the basis of this evidence, the trial court concluded that defendant's statements to Reverends Hernandez and Mimoso were "of a spiritual and confidential nature, and therefore would initially fall within the ambit of privilege." However, the court went on to conclude that defendant had waived his privilege by relating the "full content" of the privileged communications, particularly since "defendant advised Detective Torres that his statements were the same subject matter that he had imp[a]rted to the two Reverends." Accordingly, the statements defendant had made to Reverends Hernandez and Mimoso were admissible, although, as the People conceded, defendant's statements to Detective Torres, which were made without benefit of counsel, were not (see, People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344). The court declined to adopt defense counsel's argument that the violation of his State right to counsel affected the admissibility of his statements to the two ministers. Notably, the People did not argue, here or in the trial court, that the right to counsel analysis should be different because defendant was interrogated by the police in another jurisdiction that does not necessarily follow the Samuels rule.

Defendant was promptly tried and the jury found him guilty of second degree murder. On his appeal, the Appellate Division affirmed after rebuffing defendant's contention that the trial court had erred in admitting the testimony of Reverends Hernandez and Mimoso in evidence. The Appellate Division agreed with the trial court's conclusion that although the communications between defendant and the two clergymen were privileged, the privilege had been waived when defendant "voluntarily repeat[ed] the substance" of those communications to the police (186 A.D.2d 214, 214-215, 587 N.Y.S.2d 749). We now reject the lower courts' conclusion that in these circumstances defendant's CPLR 4505 privilege was effectively waived. We nonetheless conclude that the judgment of conviction was properly affirmed because, in view of the virtually air-tight circumstantial evidence of guilt, the error in the admission of the clergymen's testimony was harmless.

II.

CPLR 4505 provides: "Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor." Although often referred to as a "priest-penitent" privilege, the statutory privilege is not limited to communications with a particular class of clerics or congregants. Nor is it confined to "penitential admission[s] * * * of a perceived transgression" or avowals made " 'under the cloak of the confessional' " (concurring opn, at 623, 624, at 891, 892 of 606 N.Y.S.2d, at 970, 971 of 627 N.E.2d, quoting Matter of Keenan v. Gigante, 47 N.Y.2d 160, 166, 417 N.Y.S.2d 226, 390 N.E.2d 1151). On the contrary, in enacting CPLR 4505, the Legislature intended to recognize "the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance" (Matter of Keenan v. Gigante, supra, at 166, 417 N.Y.S.2d 226, 390 N.E.2d 1151) without regard to the religion's specific beliefs or practices.

While the privilege may have "ha[d] its origins in the Roman Catholic sacrament of Penance, in which a person privately confesses his or her sins to a priest [and t]he priest is enjoined by Church law * * * to maintain the confidentiality of the confession," the New York statute is intentionally aimed at all religious ministers who perform "significant spiritual counselling which may involve disclosure of sensitive matters" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 4505, at 683). Indeed, the drafters of the current codification struck the concluding phrase from the predecessor provision, which made the privilege applicable to communications made "in the course of discipline, enjoined by the rules or practice of the religious body to which he belongs" (see, Civ.Prac.Act § 351), because the phrase was ambiguous and rendered it "doubtful whether the rule applies to any confessions other than those to a Catholic priest" (Second Preliminary Report of Advisory Comm on Prac and Pro, 1958 NY Legis Doc No. 13, at 93). Accordingly, what is more appropriately dubbed the "cleric-congregant" privilege is applicable to ministers of all religions, most of which have no ritual analogous to that of the Catholic confession (see, Alexander, op. cit., at 683). Despite the concurrence's "four canon" analysis, New York's test for the privilege's applicability distills to a single inquiry: whether the communication in question was made in confidence and for the purpose of obtaining spiritual guidance (Matter of Keenan v. Gigante, supra, at 166, 417 N.Y.S.2d 226, 390 N.E.2d 1151).

Of course, not every communication between a cleric and a congregant will justify application of the privilege. It has been held, for example, that disclosures made to a rabbi for the purpose of obtaining his assistance in securing an attorney and a favorable plea bargain are not privileged under the statute (People v. Drelich, 123 A.D.2d 441, 506 N.Y.S.2d 746). Similarly, no privilege attached where the purported congregant went to a priest to apologize to him in the latter's secular capacity as a victim and the...