The issue before the court is whether calls made by the defendant while incarcerated are admissible at trial.

The defendant has moved to preclude the People from utilizing and admitting certain phone calls he made while incarcerated on Rikers Island.

The defendant has advanced several reasons that he believes requires preclusion of the calls.

The defendant claims that:

1. "The practice of recording, monitoring and harvesting intimate conversations of pre-trial inmates violates his right to counsel" and violates the Sixth Amendment;

2. The practice of recording the conversations "exceeds the scope of the Department's regulatory authority";

3. The recordings were conducted without the defendant's consent;

4. The telephone calls were turned over to the prosecution without a warrant and without the defendant's consent; and

5. The calls are prejudicial and have little probative value and will force the defendant to testify to explain his state of mind at the times he made the calls.

The defendant's arguments are not persuasive.

For the reasons stated herein, the defendant's motion is denied.

Phone calls that are relevant, probative of the charges, and which meet the evidentiary standards necessary for admission, will be admissible at trial. The court will examine each phone call individually, and conduct a hearing to the extent that the People will be required to provide an offer of proof for each call they seek to use.

In People v Diaz, (33 NY3d 92 [2019]), the Court of Appeals held that "detainees, informed of the monitoring and recording of their calls, have no objectively reasonable constitutional expectation of privacy in the content of those calls (US Const Amend IV). Thus, a correctional facility may record and monitor detainees' calls, as well as share the recordings with law enforcement officials and prosecutors, without violating the Fourth Amendment" (see also People v Myers, 39 NY3d 130 [2023]). Additionally, the recording and disclosure of the defendant's statements on the calls does not constitute a due process violation (People v Ashcroft, 233 AD3d 1080 [3d Dept 2024]).

The recording of the calls is allowed by statute.

"Under the Rules of the City of New York, inmates may make telephone calls during their incarceration, but, '[u]pon implementation of appropriate procedures,' their calls may be listened to or monitored where they have been given 'legally sufficient notice' (40 RCNY 1-10 [a], [h]). As set forth in its Operations Order 2, DOC 'shall record all inmate telephone calls and retain these recordings,' except calls to inmates' attorneys and others included in the Department's 'Do Not Record List.'"

(People v Diaz, 33 NY3d 92 [2019]).

The recording of calls is consistent with the mission of the Department of Correction. "Given the government's weighty interest in ensuring institutional security and order, surveillance is ubiquitous in the prison context. For instance, correctional officers routinely conduct warrantless searches of inmates and their cells to keep other inmates and themselves safe. The logic underlying the routine monitoring and recording of phone calls is no different (People v Diaz, 33 NY3d 92 [2019] [internal citations omitted]; see Hudson v Palmer, 468 US 517 [1984] [an incarcerated individual's "expectation of privacy (must) always yield to what must be considered the paramount interest in institutional security"]; see also United States v Willoughby, 860 F2d 15, 21 [2d Cir 1988] [detention facility's practice of randomly monitoring and recording pretrial detainees' phone calls "in the interest of institutional security is not an unreasonable invasion of the privacy rights of pretrial detainees"]).

"The admission of incriminating, nonprivileged phone calls that defendant chose to make while incarcerated, after receiving multiple forms of notice that his calls may be monitored and recorded, did not violate . . . defendant's federal or state right to counsel, or his due process right to participate in the preparation of his own defense. Defendant was free to make privileged calls to his attorney on all aspects of his case, including pretrial investigation. Defendant was also free to limit his social calls to matters unrelated to his case. Instead, defendant chose to assume the risks involved in making unprotected case-related communications. Furthermore, since no public servant, or anyone else, did anything to obtain any statements from defendant, his phone conversations cannot be viewed as involuntary for purposes of CPL 60.45" (and there is no violation of his Sixth Amendment rights)

(People v Cisse, 149 AD3d 435[1st Dept 2017], affd 32 NY3d 1198 [2019], cert denied 589 US _, 140 S Ct 83 [2019] [internal citations omitted]; see People v Utley, 170 AD3d 757, 758 [2d Dept 2019], lv denied 33 NY3d 1074 [2019]; People v Quinn, 210 AD3d 1284 [3d Dept 2022], lv denied 39 NY3d 1079 [2023]). Similarly, in People v Johnson, 120 AD3d 2014 [1st Dept 2014], affd 27 NY3d 199 [2016], a case cited by the defendant, the court ruled that the trial court had "properly admitted portions of telephone calls made by defendant from Rikers Island that were routinely recorded by the Department of Correction. These calls were admissible, notwithstanding that defendant's right to counsel had attached" (Johnson, 1155).

A "defendants who use the 'public' telephone system at Rikers Island while warned of the potential that such calls may be recorded impliedly consent to the 'taping' of those conversations" (People v Williams, 35 NY3d 24 [2020] citing People v Diaz (33 NY3d 92 [2019]); People v Cisse (32 NY3d 1198 [2019]).

"There is no merit to the defendant's contention that the admission of the recording was improper because the defendant did not consent to the release of the recording by the New York City Department of Correction to the prosecution, as the defendant had no reasonable expectation of privacy in the content of the recorded communication"(People v Utley, 170 AD3d 757 [2d Dept 2019] [internal citation omitted], lv denied 33 NY3d 1074 [2019], post conviction relief denied 186 AD3d 1726 [2d Dept 2020]). Since "dissemination of defendant's nonprivileged recorded jail phone calls is rationally related to the State's discharging of its duty to prosecute criminal defendants"(People v Quinn, 210 AD3d 1284 [3d Dept 2022], lv denied 39 NY3d 1079 [2023]), it follows that there is no legal prohibition against the Department of Correction sharing the recordings with other law enforcement agencies. Neither a warrant (People v Diaz, 33 NY3d 92 [2019]) nor a subpoena (People v Russ, 162 AD3d 2018 [3d Dept 2018]) are necessary to release the calls to the People.

"[W]here detainees are aware that their phone calls are being monitored and recorded, all [*2]reasonable expectation of privacy in the content of those phone calls is lost, and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible" (People v Logan, 198 AD3d 1181 [3d Dept 2021], lv denied 37 NY3d 1162 [2022], citing People v Brown, 195 AD3d 1163, 1167, 150 NYS3d 774 [2021], quoting People v Diaz, 33 NY3d 92, 99-100, 98 NYS3d 544, 122 NE3d 61 [2019], cert denied 589 US -, 140 S Ct 394 [2019]; United States v Eggleston, 165 F3d 624 [8th Cir 1999]).

"It is well settled that evidence is relevant if it has any "tendency in reason to prove any material fact". All relevant evidence is, moreover, admissible at trial unless barred by some exclusionary rule. Even where relevant evidence is admissible, it may still be excluded in the exercise of the trial court's discretion if its probative value is substantially outweighed by the potential for prejudice" (People v Mateo, 2 NY3d 383 [2004] [internal citations omitted] [internal quotation marks omitted], cert denied 542 US 946 [2004]). "The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered . . . [the] use of PINs that are required to place a phone call from jail are sufficient indicia of reliability" (People v Logan, 198 AD3d 1181 [3d Dept 2021]).

Following these principles, the People will be required to make an offer of proof as to the admissibility of each call. The Court will examine each call individually and determine its relevance, probative value and admissibility.

The court will give a curative instruction to the jury to the effect that the fact that the defendant was incarcerated at the time of the phone call(s) is not a substitute for evidence and is not a factor in your determination as to whether the People have proven the elements of a crime beyond a reasonable doubt.

This shall constitute the decision of the court.