Opinion
839 KA 20-00055
10-08-2021
The PEOPLE of the State of New York, Respondent, v. Michael MYERS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (TYLER BUGDEN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (TYLER BUGDEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of leaving the scene of an incident resulting in death without reporting ( Vehicle and Traffic Law § 600 [2] [a], [c] [ii] ), defendant contends that County Court erred in refusing to suppress statements that he made during a three-way telephone call initiated by an inmate in the Onondaga County Justice Center. In particular, defendant contends that, because one of the recipients of that call was the subject of an eavesdropping warrant, the recording of the call constitutes evidence derived from an intercepted communication that should have been suppressed on the ground that the People failed to comply with the notice provision of CPL 700.70. We reject that contention. CPL 700.70 provides that "[t]he contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed upon a trial of a defendant unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant." The definition of an intercepted communication does not include a communication that is recorded with the consent of one of the parties thereto (see CPL 700.05 [3] [a], [b] ). "[D]etainees, informed of the monitoring and recording of their calls, have no objectively reasonable constitutional expectation of privacy in the content of those calls ( US Const Amend IV ). Thus, a correctional facility may record and monitor detainees’ calls, as well as share the recordings with law enforcement officials and prosecutors" ( People v. Diaz , 33 N.Y.3d 92, 95, 98 N.Y.S.3d 544, 122 N.E.3d 61 [2019], cert denied ––– US ––––, 140 S Ct 394, 205 L.Ed.2d 215 [2019] ). Here, the inmate who placed the call was aware that the call was being monitored and recorded by the Onondaga County Justice Center, and the call was thus recorded with his implied consent (see People v. Jackson , 125 A.D.3d 1002, 1004, 2 N.Y.S.3d 625 [2d Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ). Therefore, no warrant was required to record that conversation (see
People v. Koonce , 111 A.D.3d 1277, 1279, 974 N.Y.S.2d 207 [4th Dept. 2013] ), and the People were not required to comply with CPL 700.70 before using the recording at defendant's trial.