AD1 order dated March 26, 2015, affirming, as modified, a judgment of conviction. Decision below: 126 AD3d 623, 6 NYS3d 244. Lippman, Ch. J., granted leave December 29, 2015.

ISSUE PRESENTED: Whether the court erred in allowing into evidence, as an adopted admission, a recording of defendant’s phone call to the complainant while he was incarcerated, during which defendant was silent in the face of the complainant’s accusation of physical abuse. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601 NYC 10007.)

Issue before the Court: Whether the court erred in allowing evidence, as an adopted admission, a recording of a defendant’s call to the complainant while he was incarcerated, during which defendant was silent in the face of complainant’s accusation of physical abuse.

 

Held: The trial court did not abuse its discretion as a matter of law in admitting a phone call between defendant and his ex-girlfriend as an adoptive admission even though defendant was incarcerated at the time of the recorded call.  

 

CAL Observes: Acknowledging that a defendant’s silence and evasiveness is of limited probative value, the Court, nonetheless, upheld that trial court’s decision to admit the evidence under the hearsay exception of adoptive admission since the “defendant heard and understood the victim’s accusations against him.”  In affirming the conviction, the majority focused on the fact that the defendant was not completely silent during the call and that the jury heard of evidence of the “rocky relationship” between them and received a “thorough limiting instruction.”  Fortunately, Vining can be distinguished on these facts from cases where defendants are truly silent in the face of accusations or where the court provides no, or a weak, limiting instruction. 

 

As to the fact that the call was made and recorded while incarcerated, the Court, again, declined to equate this to a defendant’s silence in the face of interrogation.  Reiterating its position in People v. Johnson, 27 N.Y.3d 199, 206 (2016), the Court determined that where defendant was on notice that his calls were recorded and was not induced into making the phone call, it could not be considered the functional equivalent of the product of an interrogation.  Unfortunately, this Court is continuing with the trend of protecting the admission of Riker’s calls – evidence that trial prosecutors frequently introduce at trial against defendants.

 

In dissent, Judge Rivera, joined by Chief Judge DiFiore, argued that the majority’s decision contravenes the “law and principles of fairness because any inference of an admission from an inmate’s silence during these recorded conversations is presumptively unsound.”  Judge Rivera’s dissent has a nice explanation of the relevant law pertaining to a defendant’s pre-trial silence and the risks involved in admitting such evidence in the prosecution’s case-in-chief.  The primary focus of the dissent, however, is on the catch-22 that defendants now face as a result of the majority’s opinion.  Quoting the prosecution’s brief in Johnson, Rivera explains that “[t]o avoid the use of incriminating evidence, a defendant should ‘refrain from discussing the case over the telephone with anyone but [defense counsel].’”  However, under the majority’s decision, even if the defendant comports with this advice and is silent during the course of the phone call, that can still be used as an adoptive admission.  Again, there seems to be a factual dispute between the majority and the dissent as to whether the defendant was, in fact, silent.  As a result, it seems as though there is still an open question as to the admissibility of Riker’s calls where there is complete pre-trial silence.