Opinion
No. 475/11.
2012-06-25
The PEOPLE of the State of New York v. Rubin APONTE, Defendant.
Charles J. Hynes, District Attorney, by ADA Terence Fleming–Warren, Esq., Brooklyn, attorney for the People of the State of New York. Aida Leisenring, Esq., Legal Aid Society, Brooklyn, attorney for the defendant.
Charles J. Hynes, District Attorney, by ADA Terence Fleming–Warren, Esq., Brooklyn, attorney for the People of the State of New York. Aida Leisenring, Esq., Legal Aid Society, Brooklyn, attorney for the defendant.
MATTHEW J. D'EMIC, J.
Defendant is accused of, among other things, conspiracy to commit the murder of his wife. In a prior indictment, now consolidated, the defendant was accused of attempted murder of his wife by means of an attack with a hammer. While in jail, he is alleged to have solicited a fellow inmate to help arrange his wife's murder. As a result of that inmate's disclosure of the conversation to the authorities, an undercover officer posing as a hit man went to the jail and recorded his conversation with the defendant. This indictment ensued.
The defendant now moves for a hearing on the fellow inmate's role as police informant ( People v. Cardona, 4 N.Y.2d 333) as well as the reliability of the information he imparted (People v. Darden, 34 N.Y.2d 177). The defendant also seeks to suppress his recorded statement as violative of his rights under the Fourth and Sixth Amendments.
The motion is denied.
In this case there is no support for the defense contention that the informant was an agent of, or acting at the behest of, the police department or district attorney's office. His relaying of the defendant's desire to have his wife killed was unsolicited. Therefore, no hearing is warranted (People v. McKay, 90 Ad3d 1492). “Where an informer works independently of the prosecution, provides information on his own initiative, and the government's role is limited to the passive receipt of such information, the informer is not, as a matter of law, an agent of the government (People v. Cardona, 41 N.Y.2d 333).
Moreover, there is no need for a hearing to determine the informer's reliability ( People v. Darden, supra,) since his information merely started the investigation. The prosecutor's decision to seek an indictment was based, not on the words of a jailed source, but on the statement of the defendant to an undercover officer (People v. Farrow, 98 N.Y.2d 629;People v. Harris, 93 AD3d 543;People v. Sudler, 75 AD3d 901).
The defense claim that the recording of his conversation in jail is a violation of his Fourth Amendment rights is without merit since there is no expectation of privacy in such settings (U.S. v. White, 401 U.S. 745;Lopez v. U.S., 373 U.S. 427;People v. Washington, 8 NY3d 565 ). Likewise with respect to his claim of a violation of his Sixth Amendment rights since the defendant was not questioned about the crimes alleged in the initial, unrelated indictment where he was represented by counsel, but only concerning a newly hatched crime (People v. Bell, 73 N.Y.2d 153;see also People v. Alls, 83 N.Y.2d 94;Illinois v. Perkins, 496 U.S. 292).
This constitutes the Decision and Order of the court.