Opinion
No. 2162–2014.
05-23-2016
The PEOPLE of the State of New York v. C.H., Defendant.
Douglas Meisel, Assistant District Attorney, Office of the Bronx District Attorney Darcel Clark, for the People. Marne Lenox, The Bronx Defenders, for Defendant.
Douglas Meisel, Assistant District Attorney, Office of the Bronx District Attorney Darcel Clark, for the People.
Marne Lenox, The Bronx Defenders, for Defendant.
APRIL A. NEWBAUER, J.
Defendant has moved in limine for an order suppressing telephone conversations recorded while he was in detention at Rikers Island. The defense argues these calls cannot be introduced as Molineux or admission evidence at trial because they were collected and distributed pursuant to a New York City Department of Correction (“DOC”) practice that violates the defendant's constitutional rights, as well as violating federal and state wiretapping statutes. The People maintain that the recordings were properly obtained by a notice to DOC dated April 7, 2015 following a communication from a DOC liaison concerning various incidents of the defendant's criminal and disruptive conduct while at Rikers Island.
Findings of Fact
Defendant was arrested on June 23, 2014 and charged with Attempted Murder in the Second Degree in a 28 count indictment covering two separate incidents involving the same gun. Counts 14–28 were severed and this trial as to Counts 1–13 involves an alleged shooting on April 27, 2014 at the corner of Fulton Avenue and East 167th Street in the Bronx. The People contend the defendant approached three teenage boys and asked them if they were from “Lyman”—meaning a known local street crew. One of the three answered, “no, we're from up the block”. The defendant then allegedly pulled out a semiautomatic pistol from his midsection area and fired a shot. The three teenagers ran and the defendant fired again. One boy sustained a bullet wound to his thigh. The police later recovered two shell casings from the scene.
Lyman Place is slightly north of East 167th Street and Fulton Avenue. There is evidence to suggest that the defendant also refers to the Lyman crew as “up the block N—s.”
The defendant was seventeen years old at the time of the incident. At the defendant's arraignment, the Court set bail in the amount of $50,000.00 cash with a $100,000.000 bond alternative. The defendant has been detained at Rikers Island or another DOC facility since June 23, 2014. He has been subject to punitive segregation for substantial periods of time.
Punitive segregation requires 22–23 hour separation from other inmates. Although the moving papers state that family may not visit, the defense acknowledged at oral argument that visits were permitted in addition to telephone time. Several of the calls also suggest visits were available to defendant's loved ones.
In March of 2015, the Assistant District Attorney assigned to this case was alerted by a DOC liaison that DOC was investigating the defendant as the perpetrator of a violent assault in which the assailant slashed the face of a fellow detainee with a sharp object. On April 2, 2015, the defendant was also arraigned on a misdemeanor assault charge involving a separate detainee. On or about April 2, 2015, the DOC liaison also contacted the ADA in this case and advised him that videotape surveillance within the facility showed the defendant to be the perpetrator of the violent assault, and that the defendant was alleged to have attempted to injure DOC personnel in various ways including by throwing liquids such as urine on them. On April 7, 2015, the ADA served on DOC a “Notice to Appear and Produce” recordings of the defendant's telephone calls for June 23, 2014 through the present to the District Attorney's Office at 198 E. 161st Street, Room 822, the ADA's office. The Notice contained the following language:
Court Ex. 1
This form is not a subpoena. However, if you disregard this notice, a subpoena may be issued requiring your attendance in court in the above action. Should you fail to appear at that time, you may be arrested, deemed guilty of Contempt of Court and liable to a fine and imprisonment.
Conclusions of Law
The use of Molineux evidence to identity should be carefully scrutinized and denied when identification is not an issue. See, People v. Bradley, 20 NY3d 128 (2012). Here identification is a central issue, and the proposed evidence is not cumulative. The People seek to introduce an alleged statement by the defendant in April, 2015 that he injured a member of the Lyman crew while in the facility. They contend this admission is relevant to motive for the shooting in June, 2014. The People also seek to show by circumstantial evidence that the individual in still photos adapted from videotape and confirmed by the complaining witness to be the shooter is in fact the defendant C. “Lonzo” H. An informant had indicated to the police that the person in the video was known as “Lorenzo” or “Lonzo” and resided in the building where the video was taken. The Rikers telephone recordings will identify C.H. by booking number and responding to individuals who call him “Lonzo”. One call will complete the authentication of the letter the defendant allegedly sent to the victim as it finds him reciting the victim's address to a friend.
Both sides acknowledge the recent Court of Appeals decision in People v. Johnson, 26 NY3d 1110 (2016), but note that the high court did not reach the issue of defendant's wholesale consent to the release of the recordings to the District Attorney. The defense urges the calls be suppressed because they were obtained without a warrant and outside the scope of any consent to monitoring by DOC under the authorizing regulatory framework. Generally, consent cannot be deemed broader than the notice provided. Id. A majority of the court was clearly concerned that prosecutors not be given carte blanche to sift through any calls made to family members throughout a lengthy period of detention simply because technology and DOC rules and policies have made it possible to obtain these records without meeting the standard for a wiretap. This case, however, presents some special features which alleviate that concern. In the calls which are the subject of this court's ruling, the defendant acknowledges committing an assault and possessing contraband while in the facility. In a subsequent call, the defendant makes an admission concerning his knowledge of the victim's address and a handwritten letter purportedly from the defendant was later mailed to the victim at that address. If the defendant sent the letter, as the People assert, the defendant's act violated a temporary order of protection barring contact with the victim. Accordingly, these calls all fit within the approved regulatory policy of the DOC under 40 RCNY § 1–10(h). See, Jordan v. Schiro, 96 AD3d 574 (1st Dept 2012).
The information disclosed during the defendant's calls were not part of family exchanges which serve to expose the defendant's vulnerability in this matter to the prosecutor (see People v. Johnson, 2016 Slip Op. 02552) and moreover, they convey no information about strategy in the case on trial. Defendant's admissions here do not go beyond DOC's stated reasons for recording the detainee's calls and thus are within the parameters of his consent. Although all non-privileged calls are recorded, DOC personnel monitors calls only on a “needs basis ....when a situation prompts' review.” NYCDOC Operations Order 384–395.
A detainee must expect that admissions relating to new crimes committed within a DOC facility would be communicated to the legal authorities designated to investigate and to prosecute those crimes. The defendant speaks and understands English. Although a teenager, the defendant was not a newcomer to the criminal justice system. Defendant's various statements may have been reckless and ill-advised, but were made after months had passed and he was exposed multiple times to the recording advising him of the recording policy. In April 2015, DOC liaison communicated with the Assistant District Attorney for this case after the defendant's calls prompted ongoing DOC monitoring. Further, while the defendant was in punitive segregation for a substantial period of time, he was able to make calls and receive visitors. In this case, the defense did not establish any unlawful connection between the enhanced restriction on his liberty and the recording policy. See, Cooper v. Marin, 49 N.Y.2d 69 (1979). Presented repeatedly with the notice that the calls may be monitored and recorded, I find the defendant impliedly consented to the calls he made being used for law enforcement purposes.
The notice at Rikers Island exceeds the scope of the notice simply posted above the phone in another facility, which the court found to be adequate in People v. Cherry, 2003 WL 21295254 (Sup Ct Dutchess Co). Although not formally made part of the record in the hearing, Rikers Island detainees are also allegedly given written notice of the policy upon entering the facility. In addition, a similar notice is posted above or near the phones themselves.
In People v. Natal, 75 N.Y.2d 379 (1990), the Court of Appeals made it abundantly clear that the prosecutors should not be circumventing judicial process by subpoenaing agency records to their offices. The court criticized the Westchester District Attorney's office for using a notice nearly identical to the one the Bronx District Attorney used here to obtain records in violation of Criminal Procedure Law § 610.20. In this case the prejudice to the defendant is minimal because DOC contacted the District Attorney's office first about the defendant's alleged criminal conduct within the facility. DOC may have been justified in turning over some or all of its records to the District Attorney's office for use in prosecuting those offenses at that point. While the defense correctly points out that the People used the caption and indictment number of this case as the vehicle to request the recordings and not any reference to the other crimes, after DOC contacted the ADA there is little doubt that a court would have signed a subpoena for these recordings. The defense also had full access to the calls and the opportunity to litigate the merits of the People's request to introduce the calls via a pre-trial hearing, but this is less significant because the real concern is not defense access, but permitting the District Attorneys unfettered access to comb through all of a detainee's conversations before trial without judicial oversight.
To the extent that the Court has reviewed the recordings, there do not appear to be any strategy decisions or other content unrelated to the prosecutory function among the defendant's calls.
As was stated at oral argument, the People could have achieved the same result without resorting to improper means by requesting a judicial subpoena prior to trial. Had the prosecutor here not had ample reason to obtain these records because the defendant posed a major ongoing security risk within the facility, and had DOC not initiated the contact with the Bronx District's Attorney's office, there would be reason to consider sanctioning the prosecution. A district attorney cannot on the one hand raise the independence of the office from a corrections agency in some contexts (see, e.g., Bell v. Poole, 2003 WL 21244625 (EDNY) ), and exploit it in others.
The prospect of an alternate result in a case not so clearly invoking the People's need for access to the calls should be sufficient to curtail the practice in the future. The obvious danger in bypassing judicial supervision of DOC recordings increases if the Court of Appeals decides that detainees' consent to telephonic monitoring is not unlimited. The defendant in People v. Johnson, 2016 Slip Op. 02552, failed to preserve this claim, but the court in reserving its ruling on the issue for a future case stated:
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.
(Emphasis added.)
Evidence of the accused's commission of other crimes is inadmissible if such evidence is offered solely to establish a criminal disposition or propensity. People v. Molineux, 168 N.Y. 264 (1901). Evidence of uncharged crimes or bad acts is admissible if it helps to establish an element of the crime charged or is relevant to a contested issue in the case, and its probative value outweighs its prejudicial effect. People v. Hernandez, 216 A.D.2d 11 (1st Dept 1995)citing People v. Alvino, 71 N.Y.2d 233. Here the People sought introduction of various phone calls to prove identity, consciousness of guilt and motive, among other relevant facts. (“The categories in the Molineux case are merely illustrative. There is no closed category of relevancy.” Prince, Richardson on Evidence, § 4–501 (2008).) Consciousness of guilt has been found to be a valid exception to the Molineux rule (see, e.g. People v. Brown, 239 A.D.2d 429 (2d Dept 1997) ), and in any event, the fact that the defendant admitted injuring a member of the alleged rival crew about a year after the alleged incident here is not evidence of consciousness of guilt in this case, but more to establish the defendant's general nature to commit crimes. The shooting victims here were not members of the Lymans. Even though the defendant was inquiring if the shooting victims were “from Lyman” it is far from a certainty that a crew rivalry was at the heart of the shooting. All three of the shooting victims were strangers to the shooter, and denied a connection to “Lyman.” Therefore, the defendant's admission of having “cut a Lyman” is too prejudicial to admit for the potential link to the perpetrator's motive, and coming months after the event its probative value is diminished. Cf. People v. McKinney, 24 N.Y.2d 180 (1969) ; People v. Rivera, 88 A.D.2d 892 (1st Dept 1982).
The same is not true, however, of the defendant calling himself or answering to the name “Alonzo” or “Lonzo” on the recorded calls. Those admissions are probative of the identity of the perpetrator. Assuming the recordings are properly redacted to avoid disclosure of the subsequent assault, they serve to identify the defendant by the same nickname that was used to describe an individual meeting the description of the perpetrator, who was caught on videotape minutes after the shooting. The investigating detective was led to the defendant's apartment by a confidential building witness who identified the person in the video stills as “Lorenzo” or “Lonzo' from Apartment 4D. The police obtained a valid search warrant for Apartment 4D and recovered a debit card in the name of the defendant C.H. The calls may be redacted to remove the prejudicial evidence and then admitted. They are in the nature of simple admissions rather than Molineux evidence, and they are probative of the perpetrator's identity. Some other recordings the People seek to use are hardly more than pedigree statements, giving the defendant's name and booking number at Rikers Island.
The last call indicates the defendant's knowledge of the victim's address and thus serves to lay a foundation for a letter purportedly written and sent to the victim by the defendant. To the extent that the People are able to lay a foundation to admit the letter, it goes to the perpetrator's identity as “Lonzo” for the same reason as the recordings. Though technically Molineux evidence by virtue of its constituting an uncharged violation of the temporary order of protection barring any contact with the victim, that connection will not be before the jurors because there is no reason to admit the temporary order of protection itself into evidence.
The defense motion is denied with the exception of the redactions noted. This decision shall constitute the Order of this Court.