Facts Relevant to the Issue: While eavesdropping pursuant to a wiretap on their target, the NY
Attorney General’s office overheard a call made from the jailhouse to the target in which the
defendant, a participant in the call, made incriminating statements about a hit and run accident.
Local law enforcement then obtained the jailhouse call and, in the subsequent trial against the
defendant for the fatal accident, the prosecution introduced the jailhouse recording into evidence.
The defense had unsuccessfully moved to preclude the recording citing the notice provisions of
CPL 700.70, and the Appellate Division affirmed, holding that the jail recording was not subject
to the wiretap notice provisions because the call was consensual.

Issue: Was the jailhouse recording subject to the wiretap notice provisions of CPL 700.70 even
though it was independently a consensual communication?

Held: The notice provisions applied because the jailhouse call was derived from the wiretap.
Discussion: CPL article 700 prescribes the procedures governing eavesdropping warrants. CPL
700.70 requires the People to provide the defendant with a copy of the eavesdropping warrant
and accompanying application in order to use the contents of an intercepted communication or
“any evidence derived therefrom” at trial.

Here, the incriminating statement was evidence derived from an “intercepted communication” –
the wiretapped conversation – and therefore subject to the notice provisions of CPL 700.70.
Although the jailhouse recording, on its own, was consensual (because detainees are held to have
impliedly consented to their conversations), the wiretap was not consensual and was an
“intercepted communication” within the meaning of CPL 700.05. The wiretap and the recording
made by the jail were “separate and distinct pieces of potential evidence,” even though they
captured the same information. As the substance of the wiretap led local law enforcement
directly to the recording used as evidence and which might otherwise not have been discovered,
the jailhouse recording evidence was derived from the intercepted communication. Since the
required notice wasn’t given, the motion to prelude should have been granted.

CAL Observes: A unicorn here - a unanimous reversal for the defendant, in a signed opinion by
Judge Garcia. The recipe? A case involving the interpretation of notice provisions that, as Judge
Garcia noted, require “strict – indeed, ‘scrupulous’ – compliance,” and where, as Judge Garcia
further noted, the prosecution bears the burden of establishing such compliance. The Court’s
concern with electronic surveillance is evident here as well, as the Court, unlike the lower courts,
was unwilling simply to say that the jailhouse recording was admissible without a warrant and
leave it at that.

This case is a good example of successfully leveraging rules that might appeal to the more
conservative members of the Court – here, the strict notice provisions of article 700 – to benefit
clients who may not otherwise find favor with that wing.