Issues before the Court:

1) Does the recording and introduction of a defendant’s Rikers Island phone calls violate New York’s or the federal wiretapping statute, New York’s constitutional right to counsel, or entitle a defendant to a voluntariness charge pursuant to C.P.L. §60.45(2)(a)?; 

 

2) Does a police order to “stop” and “turn around” constitute a level three seizure?

 

Held:

1) As defendant impliedly consented to the monitoring and recording of his telephone calls, there was no violation of the wiretapping statutes or his state constitutional right to counsel; the claim that Cisse was entitled to a voluntariness charge “because of the conditions of his confinement is devoid of record support.”

 

2) The Appellate Division’s holding that the officer lawfully approached to request information, not to demand that he stop and respond was based on an objective, credible reason, presenting a mixed question of law and fact.  As there was record support for that finding, it was beyond review by the Court of Appeals.

 

CAL Observes: The Court treated these complex issues summarily, apparently having exhausted its analytic resources on the companion case People v. Diaz (see below).  The introduction of Rikers phone calls will remain a thorn in the side of the defense bar.  This evidence is inevitably extremely prejudicial as clients are recorded discussing the facts of their cases and using language offensive to jurors.  

 

The Court’s resounding rejection of constitutional and statutory challenges to the introduction of this evidence means that defense counsel has to resort to carefully crafted, fact-intensive arguments that the prejudicial impact of individual statements outweighs their  probative value, an argument the Court specifically recognized as valid in People v. Johnson, when first addressing the constitutional issues.  The Court also left open whether a voluntariness charge might be necessary if record support is developed to warrant it.