Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that 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 violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction 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 Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.
Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant’s case.”
Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department’s dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”
Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.
It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney’s office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”