Summary
In Cisse, the Court held that the defendant impliedly consented to the monitoring and recording of phone calls made while he was incarcerated at Rikers Island, and the admission of those “nonprivileged” calls did not violate his right to counsel under the New York State Constitution.
Summary of this case from Cruz v. CovenyOpinion
No. 10
02-21-2019
The PEOPLE of the State of New York, Respondent, v. Ali CISSE, Appellant.
Robert S. Dean, Center for Appellate Litigation, New York City (Matthew Bova of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for respondent. Brooklyn Defender Services, Brooklyn (Lisa Schreibersdorf and Susannah Karlsson of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Aleksandr B. Livshits and Arielle F. Evans of counsel), for Brooklyn Defender Services and others, amici curiae. Holwell, Shuster & Goldberg LLP, New York City (Scott M. Danner, Daniel M. Horowitz, Evan H. Stein and Meredith J. Nelson of counsel), The Brennan Center for Justice at NYU School of Law, New York City (Priya Raghavan, Ames Grawert and Bryan Furst of counsel), and Cato Institute, Washington, D.C. (Ilya Shapiro of counsel), for The Brennan Center for Justice at NYU School of Law and another, amici curiae.
Robert S. Dean, Center for Appellate Litigation, New York City (Matthew Bova of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for respondent.
Brooklyn Defender Services, Brooklyn (Lisa Schreibersdorf and Susannah Karlsson of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Aleksandr B. Livshits and Arielle F. Evans of counsel), for Brooklyn Defender Services and others, amici curiae.
Holwell, Shuster & Goldberg LLP, New York City (Scott M. Danner, Daniel M. Horowitz, Evan H. Stein and Meredith J. Nelson of counsel), The Brennan Center for Justice at NYU School of Law, New York City (Priya Raghavan, Ames Grawert and Bryan Furst of counsel), and Cato Institute, Washington, D.C. (Ilya Shapiro of counsel), for The Brennan Center for Justice at NYU School of Law and another, amici curiae.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division decision should be affirmed. Defendant impliedly consented to the monitoring and recording of his telephone calls (see United States v. Conley, 531 F.3d 56, 58 [1st Cir.2008] ; United States v. Verdin–Garcia, 516 F.3d 884, 894 [10th Cir.2008] ; United States v. Faulkner, 439 F.3d 1221, 1224–1225 [10th Cir.2006] ; United States v. Hammond, 286 F.3d 189, 192 [4th Cir.2002] ; United States v. Van Poyck, 77 F.3d 285, 292 [9th Cir.1996] ; United States v. Horr, 963 F.2d 1124, 1126 [8th Cir.1992] ; United States v. Workman, 80 F.3d 688, 696 [2d Cir.1996] ; United States v. Amen, 831 F.2d 373, 378–379 [2d Cir.1987] ). Thus, neither the recording of those phone calls nor the admission of excerpts from the recorded calls violated the New York or federal wiretapping statutes (CPL art 700; Penal Law §§ 250.00[1], 250.05 ; 18 USC §§ 2510, 2511 [2][e], 2515). Further, the recording of defendant's nonprivileged phone calls did not violate his right to counsel under the New York State Constitution (see People v. Johnson, 27 N.Y.3d 199, 32 N.Y.S.3d 34, 51 N.E.3d 545 [2016] ). Defendant's conclusory argument that his statements were "involuntarily made" in violation of CPL 60.45(2)(a) because of the conditions of his confinement is devoid of record support.
The Appellate Division properly considered the suppression hearing record and the colloquy with counsel to determine that the suppression court had concluded that the police engaged in a level one encounter with defendant (see People v. Nicholson, 26 N.Y.3d 813, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ). The Appellate Division's further holding that the officer lawfully approached defendant to request information – not, as defendant argues, to demand that he stop and respond – based on an objective credible reason (see People v. Hollman, 79 N.Y.2d 181, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ), presents a mixed question of law and fact. Because there is record support for the Appellate Division's determination, it is beyond our further review (see People v. Parker, 32 N.Y.3d 49, 55, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ).
Defendant's claim of a violation of a due process right to prepare for trial is unpreserved for our review. His other arguments are unpersuasive.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.
Order affirmed, in a memorandum.