Defendant Roy Battle by Notice of Motion dated October 19, 2015 moved to suppress statements he made to law enforcement on the grounds that they were involuntary and in violation of his constitutional rights. He also moved for suppression of statements he made to two pastors of the Open Door Baptist Church as being protected under New York Civil Practice Laws and Rules § 4505, Confidential Communication to Clergy.

A combined Privilege/Huntley hearing was held on June 15, 2016. The People filed a post-hearing memorandum of law dated August 4, 2016. What follows are the Court's Findings of Fact based on the evidence it finds credible and its Conclusions of Law.

Senior Pastor William Finnerty is the Senior Pastor of the Open Door Baptist Church in Chili, a congregation of approximately 700 members. Previous to becoming pastor 1998 he had [*2]worked for 20 years as a police officer with the Rochester Police Department, serving in various units, including tactical. He identified the defendant as a friend, indicating that the defendant was a member of the Open Door Baptist Church for 15 years.

In July of 2014, Pastor Finnerty was made aware that a youth member of the church, hereinafter referred to as "D," had disclosed that he had been sexually abused by the defendant. Defendant had since relocated to California and was no longer a member of the church, but Finnerty believed he maintained ties and friendships with many members.

He received information that defendant was coming to Rochester for a graduation party for Allison Graf the weekend of July 26, 2014, and he reached out to the defendant in the morning of July 26th asking to meet, the purpose of which, according to Finnerty, was to keep the defendant from coming to the church or church-related activities. They agreed to meet at the Tim Horton's on East Henrietta Road, which they did on the morning of July 26. Pastor Finnerty got into defendant's car and they had a conversation.

Pastor Finnerty confronted defendant with allegations that he had sexually molested some boys and told him he should "go to each boy and each of their parents and confess what you've done wrong." Defendant bowed his head and said "It's true. I was in a dark place at that time. I will do what you said." Finnerty told him he cannot come on church property until the matter had been "worked out." They did not pray together. He told the defendant that the police knew about the allegations. The interaction was two to three minutes long.

Open Door Baptist church does not have a formal "confession." Penitents are not given any assurance of confidentiality. On the day he met with the defendant Pastor Finnerty was wearing casual clothes. When he does give spiritual guidance to people, he typically brings a bible with him; he did not bring one to the meeting with the defendant. Defendant never asked to keep the conversation confidential.

Pastor Paul St. Denis is also a pastor at the Open Door Baptist Church and has a variety of duties, including pastoral care, working with the youth of the church, outreach events and preaching. He has known the defendant since 2000. On July 26, 2014, defendant contacted Pastor St. Denis indicating that he wanted to talk to him and they agreed to meet at the Tim Horton's in Chili. Pastor St. Denis was aware that defendant had already met with Pastor Finnerty. The two initially met inside the restaurant shortly after 3:00 p.m... Defendant was very apologetic, "broken," and stated "I'm sorry, I'm sorry. I didn't want to hurt anybody." Since he was inconsolable, Pastor St. Denis suggested they go outside and speak in his car.

While in the car, the pastor told defendant "You need to tell me, because then you're going to need to go and you're going to need to tell this to every person that you have hurt, what you did and why you did it." Defendant relayed to Pastor St. Denis his actions with D and the inappropriate sexual relationship with him. Defendant said it was a one-time incident while they were at his house and he wished that he had not done it. Defendant also stated that one of the reasons he moved to California was to get away from the temptation. Defendant never asked for the conversation to remain confidential and Pastor St. Denis never indicated that it would remain so. St. Dennis told him that he would have to start telling people what had happened, because "there were a lot of people that were hurt." At the end of the conversation, both left in separate cars to go the graduation party at the Graf home.

Upon arrival at the Graf home, defendant and Pastor St. Denis went into the basement of the house. Defendant told Devin Graf to come down to the basement because he needed to speak to him. According to Pastor St. Denis, defendant shared with Devin what had happened [*3]with D and then said "I hope I never touched you."

According to Devin Graf, defendant was very apologetic while making the same admissions and according to Devin, defendant said there was only one "inappropriate" incident with D. Defendant also told Devin that he had already spoken about this issue with Pastors Finnerty and St. Denis.

Pastor Finnerty had asked Michael Graf to also come into the basement to talk to the defendant. When he did come down, he observed that everyone was upset and defendant stated "I did something really bad" and kept apologizing for having inappropriate contact with a teen. Michael Graf became angry that this was happening during the party and he said "I can't do this now" and he left the basement.

At approximately 9:45 p.m. that evening, defendant had another conversation with Michael and his wife Susan on the front porch of the house. At this point, most people had left the party. Pastor St. Denis came onto the porch at the end of the conversation and defendant was crying. He did not hear any specific facts that defendant disclosed to the Grafs.

Defendant told Michael and Susan Graf much of what he had said in the basement and they tried to counsel and comfort him. Defendant told them that he had contact with a teen on one occasion, although defendant did not give specific details. Michael did not recall defendant disclosing the name of the teen, but Susan remembered him providing that information. Defendant also told the Grafs that he had talked to Pastors Finnerty and St. Denis about the issue before the party. He asked for forgiveness and said he would do anything to "make it right."

In July of 2014, Investigator Robert O'Shaughnessy of the Rochester Police Department became involved with investigating the allegations made by D against the defendant. In December, he was made aware that defendant would be in town for the holidays. He contacted the defendant at the home of defendant's parents in Henrietta. O'Shaughnessy and fellow Investigator Andrew MacKenzie knocked on the door to the home and defendant answered. The investigators said they wanted to talk to him and he allowed them into the home. Defendant admitted that he knew why the officers were there.

Defendant became very nervous when one of his parents called down to see if all was alright, so Investigator O'Shaughnessy asked defendant if he would prefer to talk to them downtown, to which defendant said yes. Defendant was not handcuffed, was free to leave and was free to not go downtown with the investigators. Investigator O'Shaughnessy drove defendant downtown in his unmarked patrol car. Defendant never asked to leave or for an attorney.

The conversation downtown occurred in what is referred to as a "soft room" on the fourth floor of the Public Safety Building. It is a larger room than other interview rooms, with a couch, chairs and some tables. Defendant was not under arrest at that point and was free to leave at any time. No Miranda warnings were read to the defendant. He was given water. The entire conversation was recorded and a DVD of the contents was entered into evidence as People's Exhibit 1.

Eventually defendant asked for counsel. The questioning ceased at that point and defendant was placed under arrest.

At a hearing to consider suppression of statements made by a defendant, the People bear the burden of proving beyond a reasonable doubt that the statements were voluntarily made and [*4]not the result of coercive police activity (People v Guilford, 21 NY3d 205, 208 [2013]).

Miranda warnings are required whenever a person is subjected to custodial interrogation; that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest, and the questioning is intended to elicit incriminating evidence (See Miranda v Arizona, 384 US 436 [1966]; People v Bennett, 70 NY2d 891, 893-894 [1987]; People v Shelton, 111 AD3d 1334 [4th Dept 2013], lv denied 23 NY3d 1025 [2014]).

The issue of whether a person is in custody is generally a question of fact (People v Centano, 76 NY2d 837 [1990]). In deciding whether a defendant was in custody, the test is not what the defendant thought, but rather, whether a reasonable person, innocent of any crime, would have believed that he or she was in police custody (See People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (See People v Macklin, 202 AD2d 445, 46 [2nd Dept. 1994], lv denied 83 NY2d 912 [1994]).

Based on the testimony adduced at the hearing and a review of People's Exhibit 1, the Court concludes that defendant was not in custody when he initially met with the investigators at the home of his parents or when he had a conversation with Inv. O'Shaughnessy at the Public Safety Building.

Given the circumstances, as set forth more fully in the Findings of Fact, a reasonable person, innocent of any crime, would not have considered himself to be in custody had he been in the defendant's position (People v Yukl, 25 NY2d 585, 589 [1969]; People v Taylor, 256 AD2d 1146 [4th Dept. 1998], lv denied 93 NY2d 879 [1999]).

The defendant, therefore, was not subject to custodial interrogation, and the absence of Miranda warnings at the Public Safety Building does not warrant suppression of his statements made to law enforcement (See People v Weakfall, 108 AD3d 1115, 1116 [4th Dept. 2013], lv denied 21 NY3d 1078 [2013], People v Brown, 82 AD3d 1698 [4th Dept. 2011], lv denied 17 NY3d 792 [2011]). Further, no evidence leads the Court to conclude that defendant's statements were anything other than voluntary.

Defendant asserts that his communications to Pastor Finnerty and Associate Pastor St. Denis cannot be used against him as admissions because they fall within the privilege afforded by New York Civil Practice Laws and Rules § 4505, which provides that: "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."

The statute does not confine itself to communications in a confessional, let alone to a priest or any particular religion or congregation within that religion (People v Carmona, 82 NY2d 603, 608, [1993]).

Nor is it confined to admissions of sins (or crimes) "under the cloak of the confessional." (People v Carmona, concurring opinion, at 623, 624, quoting Matter of Keenan v Gigante, 47 NY2d 160, 166 [1979], cert denied 444 US 887 [1979]).

As the Court of Appeals stated in Matter of Keenan v Gigante, the Legislature in enacting CPLR 4505 intended to recognize, without regard to the religion's specific beliefs or practices, [*5]"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).

Thus it is irrelevant whether a particular religion or sect or denomination or congregation recognizes confidentiality of communications. It is enough that the person seeking spiritual direction or guidance is doing so with the understanding, implied or explicit, that the communication is confidential and not intended to be shared with others (see People v Johnson, 115 AD2d 973 [4th Dept. 1985], lv denied 67 NY2d 885 [1986]).

In order to claim the privilege, a defendant has the burden of demonstrating not only that the communication was intended to be confidential, but that it was "' made with the purpose of seeking religious counsel, advice, solace, absolution or ministration' " (People v Johnson, 115 AD2d at 973, quoting Matter of Fuhrer, 100 Misc 2d 315, 320 [S. Ct. Richmond Cnty 1979]. "The privilege belongs to the penitent, and it is the penitent who must establish the statutory confidentiality of the communication (People v Carmona, 82 NY2d at 623, citing People v Schultz, 161 AD2d 970, 971 [3rd Dept 1990], lv denied 76 NY2d 944 [1990]).

Finally, for the privilege to apply, the person cannot have waived it by communicating with a third person that he spoke with a spiritual advisor about what he had done, or even what he had said to the advisor (People v Carmona, 82 NY2d at 624—625).

Applying the above principles to the facts as set forth above, the defendants' communications to Pastor Finnerty were not privileged for several reasons. Finnerty, not the defendant, initiated the conversation, the purpose of which was to tell the defendant to stay away from the church on his trip back to Rochester for the graduation party (People v Johnson, 115 AD2d at 973 (where the communications sought to be privileged "were initiated by members of the mosque who testified that they were motivated by fear that defendant might be dangerous, and their desire to get him out of the mosque"). Very little about the context of the meeting suggested that the defendant was seeking spiritual consolation let alone that the conversation was confidential. In fact, Finnerty encouraged him to speak with the victims and their families, and the defendant agreed.

With regard to the conversations with Pastor St. Denis, the situation was somewhat different, but the result is the same. While the communication was undoubtedly spiritual and initiated by the defendant for that purpose — defendant had texted St. Denis earlier in the day and said he wanted to speak with him, and the content of the conversation was substantially more confessory — there was no intention or understanding that the communications were confidential, because, as with Finnerty, plans were made for meeting with the victims to discuss what had happened.

Even if the communications with Finnerty and St. Denis were spiritual and intended to be confidential, defendant waived any privilege once he met with the victims and family members, along with St. Denis, acknowledged that he had met with the pastors, and told them "exactly what he had told" St. Denis.

Accordingly, in light of the foregoing, it is hereby

ORDERED that defendant's motion to suppress statements made to law enforcement and to two pastors at his church is denied.

This is the ORDER of the Court.