In People v. Holder (n.o.r., NYLJ September 20, 1991, at 27 col 1, Supreme Court Kings County, Gerges, J.) the Court held that the defendant had the burden of proving custody by a preponderance of the evidence. Holder gave four reasons for its determination. The first reason given by the court was that all federal courts and state courts that had discussed the issue held that the burden of proof as to custody is on the defendant (see lengthy citations). The second reason supplied by the Holder court was that custody is a condition precedent to Miranda warnings. The Holder court argued that the party seeking relief generally has the burden of proving a condition precedent to the entitlement of relief. The third reason provided in Holder is that the legal criteria for determining custody requires a court to view the situation from a person in defendant's situation. The Holder court grounded its decision on the fact that the person in the best position to testify about the defendant's situation is the defendant. The fourth reason proffered by the Holder court is that the defendant has immunity for any testimony that he gives at a suppression hearing (see Simmons v. United States). Thus, there is no reason why the burden should not be on the defendant.