People v. Johnson
| Decision Date | 05 April 2016 |
| Docket Number | No. 37.,37. |
| Citation | 27 N.Y.3d 199,2016 N.Y. Slip Op. 02552,51 N.E.3d 545,32 N.Y.S.3d 34 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Marcellus JOHNSON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Stanley E. Neustadter, Cardozo Appeals Clinic, New York City (Jonathan H. Oberman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Patrick J. Hynes of counsel), for respondent.
The Legal Aid Society, New York City (Steven B. Wasserman of counsel), for The Legal Aid Society, amicus curiae.
Lisa Schreibersdorf, Brooklyn Defender Services, Brooklyn, and Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Aleksandr B. Livshits and Adam Rose of counsel), for Brooklyn Defender Services, amicus curiae.
Defendant challenges the People's use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility. The calls were recorded and made available to the prosecution by New York City's Department of Correction (the Department), in accordance with the Department's policy and practice of monitoring inmates' telephone calls, and releasing those recordings, upon request, to the City's District Attorneys' Offices.
The conditions attendant to pretrial detention, which by its nature imposes limits on communication with the outside world, may, as defendant argues, result in the unwise and imprudent use of unprivileged telephone calls to communicate matters related to a detainee's prosecution. However, we are constrained by the law applicable to the arguments, as narrowed by defendant, to conclude that on the record before us defendant is not entitled to a new trial. Therefore, the Appellate Division should be affirmed.
The Department has implemented its policy and procedures for recording and monitoring inmate telephone calls in an Operations Order. The Order states the Department “shall record all inmate telephone calls and retain these recordings,” with the exception of calls to inmates' attorneys and other persons similarly included in the Department's “Do Not Record List.”
The Operations Order further provides for three different notices to advise inmates that telephone calls are recorded and/or monitored. One notice is contained in signs posted near the telephones available for inmate use, and states in English and Spanish that Another notice is set forth in the Inmate Handbook, advising inmates “that calls may be recorded and/or monitored.” Yet another notice is played in English and Spanish at the beginning of each call, and informs the inmate that “[t]his call may be recorded and monitored.”
Although the Department indicates that it records all non-privileged calls, it only monitors on a needs basis, meaning a staff member listens to the recorded call when a situation “prompts” review. As a general matter, the Department has identified the types of calls that trigger monitoring as those involving institutional and public safety and security.
The recordings are confidential and not available to the public, but New York City's District Attorneys' Offices may request a copy of an inmate's recorded call. Such requests are decided within three business days by the Department's Deputy Commissioner for Legal Matters, although the Operations Order does not explain the criteria for granting or denying such requests. Upon approval of a request, the copy of the recording is turned over to the District Attorney's representative, who signs a form indicating receipt.
Defendant was arrested on charges of robbery, and when he could not make bail he was remanded to Rikers Island. The People acquired from the Department, following the procedures laid out in the Operations Order and through the use of a subpoena duces tecum, dozens of recordings of telephone conversations that defendant placed to his friends and family.
The People sought to play excerpts of those conversations at trial. In defendant's motion in limine to preclude the use of the recordings he argued that (1) the disclosure was unauthorized and unwarranted under the Department's Operations Order, and (2) disclosure to the prosecutor undermined defendant's Sixth Amendment right to counsel. The court denied the motion.
At trial, the prosecutor introduced into evidence, played for the jury, and replayed on summation excerpts from nine of defendant's recorded telephone calls. In these calls the defendant made several incriminating statements and repeatedly used offensive and vulgar language to discuss the victim and other individuals involved in the robbery.
The jury convicted defendant of two counts of third-degree robbery (Penal Law § 160.05 ), three counts of fourth-degree larceny (Penal Law § 155.30 [4], [5] ), and one count of criminal possession of stolen property (Penal Law § 165.45 [2 ] ). The Appellate Division summarily rejected defendant's challenge to the admission of the recordings, finding that the calls were admissible, “notwithstanding that defendant's right to counsel had attached” (120 A.D.3d 1154, 1155, 992 N.Y.S.2d 884 [1st Dept.2014] ).
A Judge of this Court granted leave to appeal (25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ).
In order to properly address and frame defendant's legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate's attorney. Nor does defendant assert that the intention of the City's regulation or the Department's Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.
Defendant instead challenges what he describes as the Department's practice of “automatic, unmonitored harvesting of intimate conversations of pre-trial inmates,” and the subsequent dissemination of the Department's recordings to District Attorneys' Offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department's regulatory authority, and was conducted without defendant's consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial.
Defendant claims the People, by combing through all the telephone calls, are able to obtain information about a defendant's defense strategy and decision-making, outside the presence of counsel, in violation of his Sixth Amendment right to counsel.* Essentially, defendant claims that the Department acts as an agent for the District Attorney in eliciting potentially damaging statements merely by recording the calls. He points to no individual that the District Attorney's Office, or for that matter the Department, employed as an agent of the government who acted in a manner to prompt or provoke information from defendant. We therefore find no support in the law or facts of this case for defendant's constitutional claim.
The Sixth Amendment right to counsel prohibits the use of incriminating statements deliberately elicited from a defendant by government agents (see Fellers v. United States, 540 U.S. 519, 524, 124 S.Ct. 1019, 157 L.Ed.2d 1016 [2004] ; United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 65 L.Ed.2d 115 [1980] ). As this Court has recognized, the “right to counsel protects persons, whether in custody or not, against the use of incriminating statements made as the result of governmental interrogation, including prosecutorial inducements to make such statements without the assistance of counsel”(People v. Velasquez, 68 N.Y.2d 533, 536, 510 N.Y.S.2d 833, 503 N.E.2d 481 [1986] ). Moreover, (id. at 537, 510 N.Y.S.2d 833, 503 N.E.2d 481 [citations omitted] ). Thus, a violation of the right to counsel requires the “involvement of the State in eliciting that evidence” (id. ).
Here, the Department did not serve as an agent of the State when it recorded the calls it turned over to the District Attorney's Office. Defendant...
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People v. Johnson
...27 N.Y.3d 19951 N.E.3d 54532 N.Y.S.3d 342016 N.Y. Slip Op. 02552The PEOPLE of the State of New York, Respondent,v.Marcellus JOHNSON, Appellant.Court of Appeals of New York.April 5, 2016.32 N.Y.S.3d 35 Stanley E. Neustadter, Cardozo Appeals Clinic, New York City (Jonathan H. Oberman of couns......