People v. Watkins

• Decision Date: 08 October 2021
• Docket Number: 647,KA 18-01272
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph R. WATKINS, II, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1349
155 N.Y.S.3d 514

The PEOPLE of the State of New York, Respondent,
v.
Joseph R. WATKINS, II, Defendant-Appellant.

647
KA 18-01272

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 8, 2021

STEVEN A. FELDMAN, UNIONDALE, FOR DEFENDANT-APPELLANT.

JOSEPH R. WATKINS, II, DEFENDANT-APPELLANT PRO SE.

PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

198 A.D.3d 1350

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of rape in the first degree ( Penal Law § 130.35 [1] ), criminal sexual act in the first degree (§ 130.50 [1]), and incest in the third degree (§ 255.25). We previously held the case, reserved decision, and remitted the matter to County Court for a ruling on that part of defendant's omnibus motion seeking to suppress an intercepted telephone call pursuant to CPL 700.70 ( People v. Watkins , 179 A.D.3d 1467, 1467-1468, 118 N.Y.S.3d 827 [4th Dept. 2020] ). Upon remittal, the court (Watches, J.) denied that part of defendant's motion. We affirm.

In this case, the victim made a controlled telephone call that was recorded by the police. Defendant contends in his pro se supplemental brief that the recording of the controlled call must be suppressed because the People allegedly failed to comply with CPL 700.70. We reject that contention. The statute, in pertinent part, requires the People, within 15 days after arraignment, to "furnish the defendant with a copy of the eavesdropping warrant, and accompanying application" in order to introduce the "contents of any intercepted communication" into evidence at a criminal trial (id. ). Because the victim was a party to the recorded conversation and consented to the recording, the recording was not an "intercepted communication" within the meaning of CPL 700.70 ( CPL 700.05 [3] ; see People v. Goldfeld , 60 A.D.2d 1, 9, 400 N.Y.S.2d 229 [4th Dept. 1977], lv denied

155 N.Y.S.3d 516

43 N.Y.2d 928, 403 N.Y.S.2d 1034, 374 N.E.2d 634 [1978] ). Thus, no eavesdropping warrant was required, and the disclosure requirement set forth in CPL 700.70 does not apply here (see People v. Ross , 118 A.D.3d 1321, 1323, 989 N.Y.S.2d 548 [4th Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014], reconsideration denied 24 N.Y.3d 1122, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ; Goldfeld , 60 A.D.2d at 9, 400 N.Y.S.2d 229 ).

In his main brief, defendant contends that he was deprived of his constitutional right to present a defense. By failing to raise that contention in the trial court, defendant failed to preserve it for our review (see People v. Brown , 4 A.D.3d 886, 889, 772 N.Y.S.2d 143 [4th Dept. 2004], lv...