Opinion
2016–07150 Ind.No. 71/15
03-06-2019
The PEOPLE, etc., Respondent, v. Otis UTLEY, Appellant.
Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman, of counsel) for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Jimei Hon of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman, of counsel) for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Jimei Hon of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), including the victim's in-court identification of the defendant as one of the perpetrators of the subject robbery and the DNA evidence linking the defendant to the bag the victim testified he saw the defendant holding during the commission of the crime, we find that it was legally sufficient to establish the defendant's identity as one of the perpetrators beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
We agree with the Supreme Court's determination admitting into evidence a recording of a telephone call the defendant made during his pretrial detention at a Rikers Island correctional facility. There is no merit to the defendant's contention that the admission of the recording was improper because the defendant did not consent to the release of the recording by the New York City Department of Correction to the prosecution, as the defendant had no reasonable expectation of privacy in the content of the recorded communication (see People v. Diaz , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op 01260 [2019] ; People v. Koonce , 111 A.D.3d 1277, 1279, 974 N.Y.S.2d 207 ). The defendant's contention that the admission of the recording violated his right to counsel under the State and Federal Constitutions also is without merit (see People v. Johnson , 27 N.Y.3d 199, 205–206, 32 N.Y.S.3d 34, 51 N.E.3d 545 ; People v. Diaz , 149 A.D.3d 974, 975, 53 N.Y.S.3d 94, affd ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op 01260 ; People v. Cisse , 149 A.D.3d 435, 436, 53 N.Y.S.3d 614, affd ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op 01258, 2019 WL 722337 [2019] ; People v. Roberts , 139 A.D.3d 985, 986, 30 N.Y.S.3d 570 ), as are his claims that the admission of the recording violated his rights to be free from unreasonable searches and seizures (see People v. Diaz , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op 01260 ), to participate in the preparation of his own defense (see People v. Cisse , 149 A.D.3d at 436, 53 N.Y.S.3d 614 ), to equal protection, and to a fair trial.
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., AUSTIN, MILLER and CONNOLLY, JJ., concur.