People v. Marcellus Johnson


AD1 order dated September 30, 2014, affirming judgment of conviction. Decision below: 120 AD3d 1154, 992 NYS2d 884. Pigott, J., granted leave March 19, 2015. Argued February 16, 2016.
ISSUE PRESENTED: Whether the court properly admitted Rikers telephone calls made by the defendant, routinely recorded by the Department of Correction, even though defendant’s right to counsel had attached. (Assigned counsel: Stanley Neustadter, c/o Cardozo Law School Appeals Clinic, 55 Fifth Avenue, 11th Floor, NYC 10003.)

Issue before the Court: Whether the First Department erred in holding that a prosecutor may introduce a detained defendant’s taped phone calls from Riker’s Island as evidence at trial?


Held: Not in this case.


CAL Observes:

If a detained defendant at Riker’s Island wants to reach out to friends and family, he or she must use the Riker’s Island phone system. While general warnings are posted, in English and Spanish, that these calls may be recorded, defendants really have no alternative when seeking to communicate with the outside world.  Rikers says it records these calls for security purposes, but it also hands the calls over to any prosecutor who subpoenas them.  Prosecutors then can, and do, fish through the call records for information useful to their case – and often use that as evidence at trial.  In this case, the Court of Appeals sadly allows this practice to continue. The only silver lining in this cloud is that there may be some hope for future relief. 


Defense counsel objected to the introduction of the Rikers calls at the defendant’s trial on three grounds. The Court rejected the first two grounds, finding: (1) no violation of the right to counsel  because the DOC did not elicit the calls and therefore did not act as an agent of the State; and (2) that the defendant failed to identify the violation of any statutory right.  The third ground  – that the calls were disseminated without consent, because the defendant was told they would be recorded, but not that the recordings would be released to the prosecution – was found to be unpreserved.  The Court thus left the door open to challenge consent in a subsequent case (unless the DOC changes all its signs before then to reflect that recorded calls will be shared with prosecutors).


While upholding it in this case, the Court also at least warned that its resolution of the “narrowly drawn” issues here should not be interpreted as approval of these practices. It encouraged trial judges to fulfill their  “traditional function” of balancing prejudice, and ensuring compliance with “constitutional mandates,” the rules of evidence, and criminal procedure.  In a concurrence, Judge Pigott underscored the potential for abuse and the undermining of the constitutional rights of detained defendants.  As Judge Pigott acknowledged, “Something needs to change.”


The concurrence also pointed out the “major distinction” between the jail using the calls for security purposes, and prosecutors using those same calls to secure an advantage at trial.  He cited statistics as to the greater likelihood of conviction for detained defendants, and the need for defendants to reach out to friends and family to obtain witnesses and gather evidence, especially for pro se defendants.  Judge Pigott also recognized that prosecutors can gain key evidence through these calls that could influence plea negotiations, especially when undisclosed to the defense.  He called the prosecution’s suggested solution that defendants just refrain from discussing details of their cases on the phone as “not a viable alternative.”  Yet, for now, despite all these lofty words, the prosecutor’s “solution” continues to be the only alternative.


Other issues the Court did not address, but may in the future:


As to consent, a defendant could argue: (1) that a warrant is needed to tape a client’s phone calls because, as with eavesdropping, knowledge does not equal consent. U.S. v. Daniels, 903 F.2d 1238, 1244 (7th Cir.); (2) because of a detained defendant’s impaired ability to communicate in any other way, his statements are “involuntary” under C.P.L. § 60.45 (and then request a voluntariness instruction before the jury); and/or (3) a defendant who speaks a language other than English or Spanish has not given informed consent under the present signage system.


In a footnote, the Court noted it was not addressing an issue raised in the amici brief (and not raised by this defendant), that the defense trial strategy can be unfairly revealed to the prosecutor.  In his concurrence, Judge Pigott also noted that the prosecutor’s “unfettered access can prejudice a defendant and impair his ability to prepare a defense, which ‘skews the fairness of the entire system’ (Barker, 407 US at 532).”  So there may be some fair trial  point to be made here.  Also, an unfair influence on plea negotiations could be argued – certainly where defense counsel advises a client to reject a plea, unaware of damaging information obtained through Rikers Island tapes, and thereby denying the defendant effective counsel during the plea bargaining process. See Lafler v. Cooper, 132 S. Ct 1376 (2012).


Finally, now that the Court of Appeals has expressed its disapproval of this practice and specifically invited trial courts to exercise their discretion and preclude these tapes on constitutional fair trial and evidentiary grounds, perhaps trial courts will be just a little bit less likely than previously to reflexively admit this evidence in so many cases!