People v. Myers

39 N.Y.3d 130

204 N.E.3d 447

183 N.Y.S.3d 811

The PEOPLE of the State of New York, Respondent,

v.Michael MYERS, Appellant.

No. 6

Court of Appeals of New York.

Decided February 9, 2023

Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr. of counsel), for respondent.

Law Office of Stephen N. Preziosi P.C., New York City (Stephen N. Preziosi of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.

OPINION OF THE COURT

GARCIA, J.

While monitoring a wiretap in an investigation unrelated to this case, law enforcement officials intercepted a call that originated from a county jail. Defendant joined the call and made statements suggesting his involvement in a fatal hit-and-run accident. Local police were alerted to the call and thereafter obtained a recording of the call from the jail. Defendant was later charged in connection with the hit-and-run. The People introduced the jail recording as evidence at trial without providing notice within fifteen days of arraignment pursuant to CPL 700.70. This was improper. A communication intercepted via wiretap is not exempted from statutory notice procedures merely because the same communication was incidentally captured on a separate, consensual recording. For that intercepted communication or any evidence derived therefrom to be admissible at trial, the prosecution must follow the CPL's notice procedures. Accordingly, because the jail recording evidence was derived from an intercepted communication, we reverse.

I.

In October 2015, the Syracuse Police Department began investigating a fatal hit-and-run automobile accident. Police identified the suspect car and determined it was registered to D.H., defendant's cousin. When police interviewed D.H., he reported that his girlfriend was borrowing the car at the time of the crash. D.H.’s girlfriend told police that the car was stolen prior to the accident.

At about the same time, in an unrelated investigation, the New York Attorney General's Office obtained a warrant to wiretap the phone of A.C. The wiretap intercepted a call from A.J., an inmate at the Onondaga County Justice Center (OCJC). A.J. initially called D.H., who added A.C. to the call. While A.J., D.H., and A.C. were speaking, D.H. asked A.C. to put defendant on the phone. Defendant then made statements about the hit-and-run accident. A Syracuse Police detective monitoring the Attorney General's wiretap heard the conversation, recognized defendant's voice, and notified the detectives working the hit-and-run case. Syracuse Police then obtained a recording of the call from OCJC.

A grand jury indicted defendant on a single count of leaving the scene of an accident without reporting ( Vehicle and Traffic Law § 600[2][a] ). The People produced the recording obtained from OCJC to defendant in discovery but did not furnish defendant with a copy of the wiretap warrant and underlying application within the fifteen-day period prescribed by CPL 700.70. Several months after defendant was arraigned, the People informed defendant by letter that the police were "alerted" to the call by the wiretap. Defendant moved to preclude the call from evidence on the grounds that the People failed to adhere to the CPL 700.70 notice procedure.

County Court denied defendant's motion, holding that the jail recording was not an "intercepted communication" within the meaning of CPL 700.05 because at least one party consented to the recording. The tape was entered into evidence and defendant was convicted. The Appellate Division affirmed, holding that the jail recorded the call with the implied consent of at least one of the participants, and therefore the call was not an "intercepted communication" and "no warrant was required to record the conversation ... and the People were not required to comply with CPL 700.70 before using the recording at defendant's trial" ( 198 A.D.3d 1373, 1373–1374, 155 N.Y.S.3d 669 [4th Dept. 2021] ).

A Judge of this Court granted defendant leave to appeal ( 38 N.Y.3d 952, 165 N.Y.S.3d 442, 185 N.E.3d 963 [2022] ).

II.

Criminal Procedure Law article 700 prescribes the procedures governing eavesdropping warrants, commonly referred to as wiretaps. We require strict—indeed, "scrupulous"—compliance with the provisions of this statute, and the prosecution has the burden of establishing such compliance (see People v. Capolongo, 85 N.Y.2d 151, 159–160, 623 N.Y.S.2d 778, 647 N.E.2d 1286 [1995] ). In imposing this rigorous standard, we recognize that "[t]he insidiousness of electronic surveillance threatens the right to be free from unjustifiable governmental intrusion into one's individual privacy to a far greater extent than the writs of assistance and general warrants so dreaded by those who successfully battled for the adoption of the Bill of Rights" ( People v. Schulz, 67 N.Y.2d 144, 148–149, 501 N.Y.S.2d 12, 492 N.E.2d 120 [1986] ). Our State Constitution contains explicit protections against the unreasonable interception of telephonic communications ( N.Y. Const. art. I, § 12 ), and "our interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect" ( Schulz, 67 N.Y.2d at 148, 501 N.Y.S.2d 12, 492 N.E.2d 120 [alterations omitted]).

Pursuant to CPL 700.70, the "contents of any intercepted communication, or evidence derived therefrom[,]" cannot be used at trial unless the People, "within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved." The People argue, and the Appellate Division held, that the wiretap was not an intercepted communication because A.J. consented to the recording of the call by OCJC. We disagree.

As a preliminary matter, our precedent makes clear that the recording of the call made by OCJC and admitted into evidence at trial is not itself an "intercepted communication" within the meaning of CPL 700.05. An "intercepted communication" is defined, as relevant here, as "a telephonic ... communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver" ( CPL 700.05[3][a] ). In People v. Diaz , 33 N.Y.3d 92, 98 N.Y.S.3d 544, 122 N.E.3d 61 (2019), we 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" ( id. at 95, 98 N.Y.S.3d 544, 122 N.E.3d 61 ). In such circumstances, detainees "impliedly consent to the ‘taping’ of those conversations" ( People v. Williams, 35 N.Y.3d 24, 46, 124 N.Y.S.3d 593, 147 N.E.3d 1131 [2020] ). The recording made by OCJC was made with the consent of A.J.—the sender—and accordingly was not an "intercepted communication" (see CPL 700.05 ). OCJC could "share the recording[ ] with law enforcement officials and prosecutors[ ] without violating the Fourth Amendment" ( Diaz, 33 N.Y.3d at 95, 98 N.Y.S.3d 544, 122 N.E.3d 61 ). That does not end our inquiry, however. The issue here is whether the recorded conversation obtained from OCJC was "derived" from an "intercepted communication."

Guided by...