Opinion
2016–00293 Ind. 4704/14
12-05-2018
The PEOPLE, etc., respondent, v. Stephens CHRISOSTOME, appellant.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Howard B. Goodman, and Michael L. Brenner of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Howard B. Goodman, and Michael L. Brenner of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The Supreme Court providently exercised its discretion in permitting the People to offer evidence of a telephone call the defendant made while in pretrial detention at Rikers Island Correctional Facility, as the probative value of the defendant's admission to his involvement in the incident outweighed its prejudicial effect (see People v. Franks, 137 A.D.3d 936, 937, 28 N.Y.S.3d 72 ; People v. Moore, 118 A.D.3d 916, 918, 988 N.Y.S.2d 80 ; People v. Case, 113 A.D.3d 872, 872–873, 979 N.Y.S.2d 383 ). The court's ruling did not violate the defendant's constitutional rights to be free from unreasonable searches, to due process, and to equal protection. Contrary to the defendant's argument, he impliedly consented to the monitoring and recording of his telephone conversations by using the telephones despite being notified in several different ways that such calls were being monitored (see People v. Diaz, 149 A.D.3d 974, 975, 53 N.Y.S.3d 94 ; People v. Koonce, 111 A.D.3d 1277, 1279, 974 N.Y.S.2d 207 ). The defendant's contention that any consent he gave was involuntary is unpreserved for appellate review (see People v. Abraham, 111 A.D.3d 756, 757, 974 N.Y.S.2d 539 ; People v. Boucher, 97 A.D.3d 597, 598, 947 N.Y.S.2d 340 ) and, in any event, without merit (see People v. Cisse, 149 A.D.3d 435, 436, 53 N.Y.S.3d 614, lv granted 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 ).
The Supreme Court properly denied the defendant's pretrial request to listen to recordings of other telephone calls he made from Rikers Island. Under the circumstances of this case, the other recordings were not subject to the disclosure requirements of CPL 240.20 or CPL 240.45.
The defendant's contention that the Supreme Court improvidently exercised its discretion in denying his request for an expanded identification charge is without merit (see People v. Summerville, 138 A.D.3d 897, 898, 29 N.Y.S.3d 487 ; People v. Patrick, 102 A.D.3d 892, 958 N.Y.S.2d 210 ; People v. Tavarez, 55 A.D.3d 932, 932, 865 N.Y.S.2d 572 ). The instruction given sufficiently apprised the jury that the reasonable doubt standard applied to identification (see People v. Knight, 87 N.Y.2d 873, 874, 638 N.Y.S.2d 938, 662 N.E.2d 256 ; People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212 ; People v. Patrick, 102 A.D.3d at 892, 958 N.Y.S.2d 210 ; People v. Cox, 54 A.D.3d 684, 685, 863 N.Y.S.2d 697 ), and the charge as a whole was otherwise adequate to apprise the jury of the correct legal principles to be applied to the case (see People v. Davis, 250 A.D.2d 776, 671 N.Y.S.2d 1003 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court considered improper factors in imposing sentence (see CPL 470.05[2] ; People v. Garson, 69 A.D.3d 650, 652, 892 N.Y.S.2d 511 ; People v. Campbell, 54 A.D.3d 959, 960, 863 N.Y.S.2d 827 ; People v. Brokenbough, 52 A.D.3d 525, 859 N.Y.S.2d 678 ). In any event, the defendant's contention is without merit (see People v. Olds, 24 A.D.3d 571, 572, 806 N.Y.S.2d 687 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
AUSTIN, J.P., ROMAN, DUFFY and CHRISTOPHER, JJ., concur.