parents moved to another residence about six-tenths of a mile away.
In the evening of December 30, 1988, Petitioner along with two others
had gone on a drinking spree at a local bar. They had consumed from a
pitcher several portions of a drink known as a Kamikaze.*fn1 After
midnight and in the early morning of December 31st they left the bar with
Cox driving his mother's automobile. He drove off the road and the car
crashed into a guardrail. The two fellow drinkers returned to the bar and
Cox began to walk towards his parent's house where he resided (a distance
of 2.8 miles) in the course of which he passed the Chervu home (2.2 miles
from the accident) broke into the building and committed the murders. He
left a fingerprint and a palm print at the scene of the crime.
Psychiatric testimony adduced at trial was to the effect that in addition
to his psychiatric problems previously mentioned, Mr. Cox was an
alcoholic and suffered from an acute alcohol amnesic syndrome, or
blackout, at the time of the crime. He walked to his family home after
the crime and disposed of his bloody clothes, as well as the knife which
he had stolen from the Chervu kitchen.
As may be imagined, this remained for some time an unsolved crime. When
he awoke the next day, Cox heard the news of the crime, and that it had
taken place in his former home. He had a history of parricidal impulses
and he knew, notwithstanding his alcohol induced "blackout," that he was
On November 11, 1990, Petitioner joined the Harbor Island Chapter of
Alcoholics Anonymous.*fn2 Alcoholics Anonymous was founded in 1935 in
Akron, Ohio as an effort to help Alcoholics obtain sobriety. Initially AA
was a self-help group which did not consider or represent itself as an
established religion, but helped many Alcoholics, who continued to belong
to and worship with their own churches or other religious groups while
belonging to AA. In 1939 the founders published a text which set forth
the "Twelve Steps of Recovery." This represents the core belief of AA,
which in the ensuing years has been extremely successful
internationally, with more than a million members in the United States
The Twelve Steps must be accomplished one by one, beginning with the
first step. A new member will be sponsored and assisted by one or more
existing members of the organization. Members interact on a first name
basis only. The entire relationship is both anonymous and confidential.
Members are forbidden from telling outside, statements made at a
meeting. The eighth step requires the new member to have "made a list of
all persons we had harmed and became willing to make amends to them all."
Step five, preliminary to step eight, required that the new member have
"admitted to God, to ourselves, and to another human being the exact
nature of our wrongs." (Emphasis added)
In compliance with this discipline imposed upon him by AA, Cox admitted
least eight fellow AA members that he "believed" that he had
committed the two murders in his former residence while he was blacked
out from alcohol and that he had dreams about his possible involvement
with the murder; that he had used a knife; that he had disposed of the
knife and his bloodied clothes.
In late 1992 or early 1993, a woman member of AA, identified in the
trial record as "Ms. H" met Petitioner through her membership in AA, and
in February 1993 began to share an apartment with him and with one "Mr.
R," another member of AA.*fn3 Ms. H revealed to her own psychologist
that she knew of the crime. On his advice and on the advice of an
attorney whom he obtained for her, the District Attorney was made aware
of her knowledge and that of the other AA members, all of whom were
interrogated by the authorities and in apparent violation of the
confidentiality which AA holds out to its communicants, and possibly the
psychologist's duty of confidentiality, corroborated the story. As a
result of this information Petitioner was arrested and his fingerprints
taken. As might be expected, they matched the fingerprint and palm print
at the crime scene.
The doctrine of inevitable discovery cannot be applied in this case.
Although Cox had been fingerprinted in the course of his military
service, those prints ordinarily would not have been accessed in
connection with the investigation. Accordingly, the fingerprints which
tie Petitioner to the crime are a direct result of the disclosure to
authorities of the communication which Petitioner had with his fellow
members of AA.
Petitioner's argument is that his efforts to comply with the Twelve
Steps are privileged and that communications in furtherance of the
discipline imposed by AA on its communicants may not be disclosed to his
detriment. In light of § 4505 of the New York C.P.L.R. relating to
confidential communications to clergy, Petitioner now contends that what
he told his fellow members was privileged and if this statutory
codification and extension of the priest/penitent privilege does not
extend to such communications then the statute is unconstitutional as
applied. In either case, he is entitled to relief on due process or equal
Section 4505 reads in relevant part as follows:
Section 4505. Confidential Communication to
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 spiritual advisor.
The statute has its historical origin in the Roman Catholic sacrament
in which a person privately confesses his or her sins to God, through a
priest, in order to receive absolution. That priest by Canon law is
required to maintain the confidentiality of the confession. Commentators
agree that § 4504 "recognizes the societal value of encouraging
communications of this nature and extends the privilege of the
confidences to lay persons seeking spiritual advice from the clergy of
any religion." Practice Commentary by Vincent C. Alexander, Book 7B of
McKinney's Consolidated Laws of New York Annotated (1992).
The common law in New York recognized no privilege for confidential
communications or confessions made to
clergymen or other spiritual
advisors. Richardson on Evidence Tenth Ed., by Jerome Prince, § 424.
The initial New York statute granting a privilege was passed in 1876;
since then, the privilege has been broadened by amendments adopted from
time to time over the years.
In People v. Carmona, 82 N.Y.2d 603, 608-9(1993) the New
York Court of Appeals held:
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, quoting Matter of
Keenan v. Gigante, 47 N.Y.2d 160, 166). 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. Giganti
supra, at 166) 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 counseling which may involve
disclosure of sensitive matters" (Alexander,
Practice Commentaries, McKmnney'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 N.Y. 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).
The Appellate Division did not deal with this issue except by its
ordinary boilerplate phrase to the effect that all other issues were
"either unpreserved for appellate review or without merit."*fn4 The
Appellate Division brief of the People argued that no statutory or common
law privilege attached to communications between members of Alcoholics
Anonymous, and that "[i]t is a matter solely for the legislature, which
has not chosen to endow AA communications with confidentiality." (Brief
at p. 29) The Appellate Division must be
deemed to have adopted that
argument. Indeed, the People also argued that "there was no evidence
whatsoever that Alcoholics Anonymous is a religious organization as
required by statute, or that another members is a clergyman or other
member of "any religion or duly accredited Christian Science
This Court would agree were the issue an open one in this Circuit, with
Respondent's arguments made in the same brief that "although there are
religious underpinnings to the AA philosophy, AA is not a religion but
rather a self-help organization designed to overcome the problems of
alcoholism." Our Court of Appeals has subsequently held in the context of
an Establishment Clause case that AA is a religion and that imposing
attendance at AA meetings upon a criminal defendant violated the
Establishment Clause by reason of the religious nature of the Twelve
Steps. Warner v. Orange County Department of probation, 115 F.3d 1068,
reaff'd 173 F.3d 120 (2d Cir. 1999). In Griffin v. Coughlin, 88 N.Y.2d 647,
683(1996), the New York Court of Appeals held that "Doctrinally and as
actually practiced in the Twelve Step methodology, adherence to the AA
fellowship entails engagement in religious activity and religious
members are urged to accept the existence of God as a
Supreme Being, Creator, Father of Light and Spirit of
the Universe. In `working' the Twelve Steps,
participants become actively involved in seeking such
a God through prayer, confessing wrongs and asking for
removal of shortcomings. These expressions and
practices constitute as a matter of law religious
exercise for establishment clause purposes."
Grffin, 88 N.Y.2d at 683.
The record before this Court shows that in addition to the numerous
religious references in the Twelve Steps, meetings of AA are closed with
a recitation of The Lord's Prayer. There is no principled basis for a
court to hold that AA is a religion for Establishment Clause purposes,
and yet that disclosure of wrongs to a fellow member as ordained by the
Twelve Steps does not qualify for purposes of a privilege granted to
other religions similarly situated. Clearly it is possible as a matter of
Constitutional law to have and to practice a religion without having a
clergyman as such, or where all members exercise the office of clergyman
to the extent of receiving confessions or confidences.
If § 4505 of the New York C.P.L.R. be construed as expressing an
endorsement of the traditionally recognized forms of religious expression
over a less conventional religious expression, the state has violated the
Establishment Clause of the First Amendment to the United States
Constitution. Similarly, to the extent that a Free Exercise issue is
involved, if the state is treating AA meetings with less protection than
any other form of religious communication which carries assurances of
confidentiality, a Constitutional violation also exists.
This issue was adequately tendered to the Appellate Division on appeal
and the Petitioner cannot be dismissed on claims of non-exhaustion. This
is particularly true in light of Respondent's brief in the Appellate
Division where the People argue that AA is not a religion and that
disclosures made in furtherance of its doctrines are not privileged under
§ 4505. The argument is sufficient notice since all Judges are well
aware of the Constitutional issues present when religion intersects with
The point is critical because but for the violation of § 4505 the
record is clear that
the People would never have identified the
fingerprint and palm print, which properly should have been suppressed as
"fruit of the poison tree."
The numerous remaining challenges to the conviction Points 1 through 5
of the Petition have been considered by this Court to the extent that any
of them alone or together arise to a Constitutional level. They do not
involve a decision contrary to or involving an unreasonable application
of Federal Law, nor are they based on an unreasonable determination of
the facts in light of the evidence which was before the state court, and
are lacking in merit.
The Petition for the writ is granted. The issuance thereof is stayed on
the Court's own motion pending appellate finality.