People v. Drelich

• Decision Date: 29 September 1986
• Citation: 123 A.D.2d 441,506 N.Y.S.2d 746
• Parties: The PEOPLE, etc., Respondent, v. Philip DRELICH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 746

506 N.Y.S.2d 746

123 A.D.2d 441

The PEOPLE, etc., Respondent, v. Philip DRELICH, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 29, 1986.

Freda S. Nisnewitz, Brooklyn, (Robert Rimberg, on brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and Shulamit Rosenblum, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, WEINSTEIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered June 9, 1980, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The defendant stands convicted of the brutal stabbing murder of his 23-year-old pregnant wife. He raises a number of contentions in support of his claim that his conviction must be set aside and a new trial ordered, the principal one of which concerns an alleged violation of his privilege under CPLR 4505 against disclosure of statements amounting to a confession made by him to Rabbi Moses David Tendler.

A hearing was held at Criminal Term at which both Rabbi Tendler and the defendant testified. The defendant claimed that he had spoken with Rabbi Tendler seeking counsel and spiritual advice while the rabbi, on the other hand, asserted that his role was strictly a secular one, in which the defendant sought his assistance and the benefits of his influence and connections in securing an attorney and in negotiating a beneficial plea bargain agreement. According to Rabbi Tendler, he stressed many times to the defendant during their discussions that his role was not rabbinical in nature, and he indicated that he would not have involved himself in the matter in other than a secular role.

At the conclusion of the hearing, Criminal Term found that "the disclosures by the defendant were not made to Rabbi Tendler for the purpose of seeking religious counsel, advice, solace, absolution or ministration, but merely to induce the Rabbi to render concrete assistance by way of intervention with others and obtaining an attorney, plea bargaining and raising funds". The court made particular note of the defendant's concession that he had sought out Rabbi Tendler in part because, as a prominent rabbi, he had "connections" in the secular world. The court also found it unlikely for the defendant to have held a reasonable belief that Rabbi Tendler was acting as his spiritual adviser and that their communications were confidential in light of the rabbi's repeatedly having stressed the fact that he was not acting as the defendant's spiritual adviser. Accordingly, Criminal Term denied the defendant's motion to bar Rabbi Tendler's testimony.

During the course of the trial Rabbi Tendler's role was again raised and the court reopened the hearing on the question of privilege to permit testimony by Murray Richman, the attorney whom Rabbi Tendler had contacted on the defendant's behalf. Richman testified that on at least three occasions the rabbi had told him that he had been giving spiritual solace to the defendant. However, Rabbi Tendler again was called to testify and he reiterated his prior statement that he had not rendered spiritual advice to the defendant. At the close of the hearing the court adhered to its earlier determination.

It is well recognized that no clergyman-penitent privilege existed at common law (Matter of Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151, cert. denied 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 118; Richardson, Evidence § 424 [10th ed., Prince] ), and that the privilege is purely a creature of statute in New York. CPLR 4505 provides that "[u]nless 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 of confidence made to him in his professional character as spiritual advisor". It is clear, however, that not every communication made to a clergyman is entitled to the protection of the privilege (Matter of Keenan v. Gigante, supra; Matter of Puglisi v. Pignatio, 26 A.D.2d 817, 274 N.Y.S.2d 213; Matter of Fuhrer, 100 Misc.2d 315, 419 N.Y.S.2d 426; United States v. Wells, 446 F.2d 2 (2nd Cir., 1971)). Rather, as the Court of Appeals has stated, "[t]here must be 'reason to believe that the information sought required the disclosure of information under the cloak of the confessional or was in any way confidential' for it is only confidential communications made to a clergyman in his spiritual capacity which the law endeavors to protect" (Matter of Keenan v. Gigante, supra, 47 N.Y.2d at p. 166, 417 N.Y.S.2d 226, 390 N.E.2d 1151, quoting from Matter of Puglisi v. Pignato, supra; see generally, Ann., Matters to which the Privilege Covering Communications to Clergyman or Spiritual Advisor Extends, 71 ALR 3d 794, 808-809). The burden rests upon the individual invoking the privilege to establish that the communication sought to be shielded was made for the purpose of seeking religious counsel (see, Matter of Puglisi v. Pignato, supra ).

In light of the applicable statutory and case law, and based upon our review of the evidence adduced at the hearing viewed in the light most favorable to the People, we are satisfied as to the correctness of the determination of Criminal Term. The defendant's communications to Rabbi Tendler were made for the secular purpose of seeking assistance in the retention of counsel, and in negotiating with the prosecutor's office and securing other assistance in connection with the preparation of his defense to the charges, and were not made by the defendant in confidence to Rabbi...