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People v. Diaz

Supreme Court of New York, Second Department

April 19, 2017

The People of the State of New York, respondent,
v.
Emmanuel Diaz, appellant. Ind. No. 6408/12

          Lynn W. L. Fahey, New York, NY (Dina Zloczower of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

          L. PRISCILLA HALL, J.P. SHERI S. ROMAN JEFFREY A. COHEN FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered February 24, 2014, convicting him of robbery in the first degree and burglary in the first degree, upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         The defendant contends that he was deprived of the effective assistance of counsel as a result of his trial counsel's failure to request that the jury be charged on the affirmative defense to robbery in the first degree and burglary in the first degree that the object displayed was not a loaded weapon from which a shot, capable of producing death or other serious physical injury, could be discharged (see Penal Law §§ 140.30[4]; 160.15[4]; People v Miaram, 97 A.D.3d 606, 607). However, contrary to the defendant's contention, his trial counsel's decision not to request an instruction on that affirmative defense reflected a legitimate trial strategy of a reasonably competent attorney (see People v Casseus, 120 A.D.3d 828, 829). Defense counsel pursued a misidentification defense at trial, which would have been undermined had defense counsel put on inconsistent evidence that, while the defendant was present during the incident, the weapon he displayed was not loaded and operable (see People v Howard, 22 N.Y.3d 388, 401; see also People v Gordon, 92 A.D.3d 580, 581). Further, the Supreme Court was not required to give the charge, sua sponte, since such an instruction would have interfered with the defendant's theory of the case (see People v Acevedo, 84 A.D.3d 1390, 1391).

         The defendant's contention that he was deprived of his right to counsel under the Federal and State Constitutions by the admission into evidence of recorded telephone calls he made during his detention at Rikers Island Correctional Facility (hereinafter Rikers) is without merit (see People v Johnson, 27 N.Y.3d 199, 205-206; People v Roberts, 139 A.D.3d 985, 986).

         Furthermore, there is no merit to the defendant's contention that the recordings of his telephone calls from Rikers were improperly admitted into evidence at trial because he did not consent to the dissemination of the recordings by the New York City Department of Correction (hereinafter the DOC) to the prosecution. The defendant does not identify any statutory or constitutional violation with respect to the admission of the recordings. Instead, the defendant argues that the notice he received that his telephone calls would be monitored and recorded provided no basis to infer that he consented to the distribution of those recordings to the prosecution, and that any consent to the monitoring and recording of his calls was for the limited purpose of ensuring prison security.

         "A party's consent to the taping of his [or her] telephone calls can be inferred from his [or her] knowledge that such conversations would be monitored" (People v Jackson, 125 A.D.3d 1002, 1004; see People v Koonce, 111 A.D.3d 1277, 1279; Curley v Board of Trustees, 213 A.D.2d 583, 583; United States v Amen, 831 F.2d 373, 378-379 [2d Cir]). Here, the defendant impliedly consented to the monitoring and recording of his telephone conversations by using the prison telephones despite being notified that such calls were being monitored (see People v Jackson, 125 A.D.3d at 1004; United States v Workman, 80 F.3d 688');">80 F.3d 688, 693-694 [2d Cir]; United States v Amen, 831 F.2d at 379). The record reflects that the defendant was on notice from several sources of the prison's policy of monitoring and recording inmate telephone conversations, including the inmate handbook, signs posted next to the telephones, and a recorded message which plays prior to each telephone call. In light of these notifications, "it was no longer reasonable for [the defendant] to presume an expectation of privacy as to the content of those telephone conversations" (United States v Busch, 2013 U.S. Dist LEXIS 188419, *165 [WD NY, No. 09CR331A]; see United States v Shavers, 693 F.3d 363, 389-390 [3d Cir], vacated and remanded on other grounds ___ U.S. ___, 133 S.Ct. 2877). Notably, the defendant indicated during certain of the recorded calls that he was hesitant about discussing the details of the crime over the telephone. Although the inmate handbook provides that "all calls may be recorded for security purposes with the exception of privileged calls, " the signs posted next to the telephones broadly state that "[i]nmate telephone conversations are subject to electronic monitoring and/or recording in accordance with department policy, " and that "[a]n inmate's use of [institutional] telephones constitutes consent to this monitoring and/or recording." Additionally, an employee of the DOC testified that prior to each call, an inmate will hear a recorded message which states that the call may be recorded and monitored. Thus, contrary to the defendant's contention, the notifications, as a whole, did not limit the scope of the defendant's consent to the monitoring and recording of his telephone calls solely for security purposes (see United States v Faulkner, 439 F.3d 1221, 1223-1224 [10th Cir]; United States v Peoples, 71 F.Supp.2d 967, 972, 979 [WD Mo]).

         We note that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison, " and certainly "pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that... are enjoyed by convicted prisoners" (Bell v Wolfish, 441 U.S. 520, 545). Since any concern that the notice provided to inmates by the DOC is inadequate can be readily ameliorated by an express notification that the recorded calls may be turned over to the District Attorney, the better practice going forward may be for the DOC to include such a warning (cf. People v Johnson, 27 N.Y.3d at 207-208). Nevertheless, the absence of such a warning does not render the calls inadmissible (see People v Koonce, 111 A.D.3d at 1279; United States v Green, 2016 WL 3610331, *11, 13-14, 2016 U.S. Dist LEXIS 87388, *37, 42-43 [WD NY, No. 12-CR-83S]; United States v Busch, 2013 U.S. Dist LEXIS 188419, *164; United States v Green, 842 F.Supp. 68, 71-72 [WD NY], affd sub nom. United States v Workman, 80 F.3d 688');">80 F.3d 688 [2d Cir]). Rather, the trial court must weigh the probative value of the recordings against the potential for prejudice to the defendant (see generally People v Harris, 26 N.Y.3d 1, 5). "[D]ue to the possibility of prejudice inherent in the prosecutor's use of inmate recordings, the trial judge's role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure" (People v Johnson, 27 N.Y.3d at 208).

         The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

          ROMAN, COHEN and CONNOLLY, JJ., concur.

          HALL, J.P., dissents, and votes to reverse the judgment, on the law, and order a new trial, with the following memorandum:

         Pursuant to the Rules of the City of New York and an Operations Order implemented by the New York City Department of Correction (hereinafter the DOC), the respective New York City District Attorneys' Offices have essentially unfettered access to the recordings of nonpriviledged telephone calls made by pretrial detainees at pretrial detention facilities, such as Rikers Island Correctional Facility (hereinafter Rikers) (see People v Johnson, 27 N.Y.3d 199, 203-204). This arrangement between the DOC and the District Attorneys' Offices presents a fundamentally unfair situation to pretrial detainees. In short, while pretrial detainees are notified that telephone calls made from institutional telephone lines may be recorded and monitored, they are not informed that the recordings of such calls may be distributed to the prosecutors handling their cases, and that information in the calls can be used against them at their criminal trials. I share Judge Pigott's concern, expressed in his ...


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