People v. Morgan
| Decision Date | 26 August 1991 |
| Citation | 573 N.Y.S.2d 765,175 A.D.2d 930 |
| Parties | The PEOPLE, etc., Respondent, v. Anthony MORGAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Sara Bennett, of counsel), for appellant.
Anthony Morgan, pro se.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Richard T. Faughnan and Linda Breen, of counsel), for respondent.
Before KOOPER, J.P., and SULLIVAN, LAWRENCE and RITTER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered February 17, 1988, convicting him of arson in the first degree (six counts), reckless endangerment in the first degree (six counts), and burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with and convicted of, inter alia, six counts of arson in the first degree in connection with fires set at 215 Troy Avenue, 960 Myrtle Avenue, and 580 Rockaway Avenue in Brooklyn. The police were assisted by an informant, William Diaz, in their investigation of these and other suspected arsons. Diaz agreed to wear concealed recording devices in order to record conversations with the defendant and others who had worked with him in setting the fires. The defendant's main contention on appeal is that he was deprived of a fair trial because the trial court improperly allowed into evidence two allegedly inaudible tape recordings of conversations he had with Diaz. We disagree.
The first challenged tape recording concerns a conversation between Diaz and the defendant on June 15, 1985. Diaz was wearing two devices, a Nagra tape recorder used to make the recording, and a transmitter which allowed undercover police detective, Gerald Sheehan, to overhear what was being discussed. Detective Sheehan testified that he overheard Diaz and the defendant discuss the details of the fire that had been set at 580 Rockaway Avenue.
The second challenged tape recording involves two separate conversations between Diaz and the defendant, both recorded on July 10, 1985. Once again, Diaz was wearing a concealed transmitting device that allowed Detective Sheehan to overhear the conversations. In addition, a second undercover police detective, Ronald Hickman, who was acting as a driver for Diaz, was present during the conversations. Detective Hickman testified that he drove Diaz and the defendant to 215 Troy Avenue. Detective Sheehan testified that he heard, through a transmitting device, Diaz and the defendant discuss two fires that had been set at that location. Detective Hickman later drove to 960 Myrtle Avenue where Diaz and the defendant discussed the three fires set there.
The defendant was arrested in connection with the subject arsons on October 5, 1985. He was brought to the police station and after being properly advised of his Miranda rights gave a videotaped statement admitting his role in setting the six fires at the specified locations.
Whether a tape recording should be admitted into evidence is within the discretion of the trial court. The...
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