by Anthony W. Accurso

The Court of Appeals of New York ordered the suppression of a jail recording where it was derived from a wiretap and the People failed to provide the required statutory notice to the defendant under CPL 700.70.

Syracuse police were investigating a fatal hit-and-run automobile accident that occurred in October 2015. Around the same time in a separate investigation, the New York Attorney General’s Office obtained authorization for a wiretap on the phone of A.C.

A.J, a prisoner at the Onondaga County Justice Center (“OCJC”) called A.C., who later handed the phone to Michael Myers, who then made self-incriminating statements regarding the hit-and-run. An officer listening to the wiretap recording recognized Myers’ voice and obtained a copy of the OCJC phone recording.

Myers was indicted for the hit-and-run based on the jail phone recording. He filed a suppression motion for the recording but was denied under a long-standing policy that prisoners have no reasonable expectation of privacy in jail phone calls. Meyers timely appealed.

The Court noted that CPL 700 governs wiretaps in the state of New York and that the Court of Appeals “require[s] strict – indeed, scrupulous – compliance with the provisions of the statute, and the prosecution has the burden of establishing such compliance.” People v. Capolongo, 647 N.E.2d 1286 (N.Y. 1995). This is because “the 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, 492 N.E.2d 120 (N.Y. 1986).

CPL 700.70 states 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 the interception was authorized or approved.”

The Appellate Division agreed with the People’s argument that the wiretap was not an “intercepted communication” because A.J. consented to the call being recorded by OCJC. But the Court of Appeals disagreed.

The Court stated that a call made from a jail, where everyone is on notice that calls are recorded, and admitted into evidence is not itself an “intercepted communication” under CPL 700.05 because detainees “impliedly consent” to the taping of conversations and thus have no expectation of privacy in the calls. See People v. Williams, 147 N.E.3d 1131 (N.Y. 2020); see also People v. Diaz, 122 N.E.3d 61 (N.Y. 2019). An “intercepted communication” is defined as “a telephonic … communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof,” without the consent of either. CPL 700.05(a)(a).

The recording in this case was made with A.J.’s consent, the sender, and thus, it was not an “intercepted communication.” See CPL 700.05. As a result, OCJC was free to share the recording with law enforcement officials without violating the Fourth Amendment, according to the Court. Diaz.

However, the Court stated that does not end the examination because the “issue here is whether the recorded conversation obtained from OCJC was ‘derived’ from an ‘intercepted communication,’” because the wiretap was an “intercepted communication.” That is, the statute requires an independent consent inquiry for the eavesdropping done pursuant to the warrant because the “wiretap and the recording made by OCJC are separate and distinct pieces of potential evidence, and the fact that they captured the same information does not affect the analysis,” explained the Court. It stated that a wiretap doesn’t convert a jail recording into an “intercepted communication,” just as consent provided to OCJC doesn’t convert a wiretap into a consensual recording impairing the protections of CPL 700.

Applying the foregoing rules to the current case, the Court stated that the Attorney General’s Office was allowed to share recordings from the wiretap with other law enforcement officials under CPL 700.65; however, any use of the intercepted call or any evidence “derived therefrom” at trial was governed by the notice requirement of CPL 700.70. The Court concluded that the OCJC call was clearly derived from the wiretap, i.e., an “intercepted communication.” The People failed to timely provide the statutory notice to the defendant. Thus, the Court held that the failure to furnish timely notice “precluded the admission of the wiretap recording and any evidence derived therefrom – namely, the jail recording – into evidence at trial. CPL 700.70.

Accordingly, the Court reversed the defendant’s conviction, ordered the recording of the call suppressed, and ordered a new trial. See: People v. Myers, 204 N.E.3d 447 (N.Y. 2023).