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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 37
The People &c.,
            Respondent,
        v.
Marcellus Johnson,
            Appellant.




          Stanley E. Neustadter, for appellant.
          Susan Axelrod, for respondent.
          Legal Aid Society; Brooklyn Defender Services, amici
curiae.




RIVERA, J.:
          Defendant challenges the People's use at his criminal
trial of excerpts from certain recorded telephone calls defendant
made to family and friends during his detention at Rikers Island
Correctional Facility.   The calls were recorded and made
available to the prosecution by New York City's Department of

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Correction (the Department), in accordance with the Department's
policy and practice of monitoring inmates' telephone calls, and
releasing those recordings, upon request, to the City's District
Attorneys' Offices.
          The conditions attendant to pretrial detention, which
by its nature imposes limits on communication with the outside
world, may, as defendant argues, result in the unwise and
imprudent use of unprivileged telephone calls to communicate
matters related to a detainee's prosecution.      However, we are
constrained by the law applicable to the arguments, as narrowed
by defendant, to conclude that on the record before us defendant
is not entitled to a new trial.    Therefore, the Appellate
Division should be affirmed.


                      I.   Regulatory Framework
          Under the Rules and Regulations of the City of New York
inmates are permitted to make calls during their incarceration,
subject to the Department's authority to listen to and monitor
all calls not otherwise exempted or privileged.     Title 40 RCNY §
1-10 provides, in relevant part,

          "(a) Policy. Prisoners are entitled to make
          periodic telephone calls. A sufficient number
          of telephones to meet the requirements of
          this section shall be installed in the
          housing areas of each facility.
          ....
          (h) Supervision of telephone calls. Upon
          implementation of appropriate procedures,
          prisoner telephone calls may be listened to

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          or monitored only when legally sufficient
          notice has been given to the prisoners.
          Telephone calls to the Board of Correction,
          Inspector General and other monitoring
          bodies, as well as to treating physicians and
          clinicians, attorneys and clergy shall not be
          listened to or monitored."
(40 RCNY § 1-10 [a], [h]).
          The Department has implemented its policy and
procedures for recording and monitoring inmate telephone calls in
an Operations Order.   The Order states the Department "shall
record all inmate telephone calls and retain these recordings,"
with the exception of calls to inmates' attorneys and other
persons similarly included in the Department's "Do Not Record
List."
          The Operations Order further provides for three
different notices to advise inmates that telephone calls are
recorded and/or monitored.   One notice is contained in signs
posted near the telephones available for inmate use, and states
in English and Spanish that:

          "Inmate telephone conversations are subject
          to electronic recording and/or monitoring in
          accordance with Departmental policy. An
          inmate's use of institutional telephones
          constitutes consent to this recording and/or
          monitoring."
Another notice is set forth in the Inmate Handbook, advising
inmates "that calls may be recorded and/or monitored."    Yet
another notice is played in English and Spanish at the beginning
of each call, and informs the inmate that "[t]his call may be


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                                - 4 -                         No. 37

recorded and monitored."
            Although the Department indicates that it records all
non-privileged calls, it only monitors on a needs basis, meaning
a staff member listens to the recorded call when a situation
"prompts" review.   As a general matter, the Department has
identified the types of calls that trigger monitoring as those
involving institutional and public safety and security.
            The recordings are confidential and not available to
the public, but New York City's District Attorneys' Offices may
request a copy of an inmate's recorded call.   Such requests are
decided within three business days by the Department's Deputy
Commissioner for Legal Matters, although the Operations Order
does not explain the criteria for granting or denying such
requests.   Upon approval of a request, the copy of the recording
is turned over to the District Attorney's representative, who
signs a form indicating receipt.


  II.   Prosecution's Use of Defendant's Recorded Calls at Trial
            Defendant was arrested on charges of robbery, and when
he could not make bail he was remanded to Rikers Island.    The
People acquired from the Department, following the procedures
laid out in the Operations Order and through the use of a
subpoena duces tecum, dozens of recordings of telephone
conversations that defendant placed to his friends and family.
            The People sought to play excerpts of those


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                                   - 5 -                       No. 37

conversations at trial.       In defendant's motion in limine to
preclude the use of the recordings he argued that (1) the
disclosure was unauthorized and unwarranted under the
Department's Operation Order, and (2) that disclosure to the
prosecutor undermined defendant's Sixth Amendment right to
counsel.   The court denied the motion.
               At trial, the prosecutor introduced into evidence,
played for the jury, and replayed on summation excerpts from nine
of defendant's recorded telephone calls.      In these calls the
defendant made several incriminating statements and repeatedly
used offensive and vulgar language to discuss the victim and
other individuals involved in the robbery.
           The jury convicted defendant of two counts of third
degree robbery (Penal Law § 160.05), three counts of fourth
degree larceny (Penal Law §§ 155.30 [4], [5]), and one count of
possession of stolen property (Penal Law § 165.45 [2]).      The
Appellate Division summarily rejected defendant's challenge to
the admission of the recordings, finding that the calls were
admissible, "notwithstanding that defendant's right to counsel
had attached."
           A Judge of this Court granted leave to appeal (25 NY3d
951 [2015]).


                       III.    Defendant's Claims
           In order to properly address and frame defendant's


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legal claims, we first clarify what defendant does not allege on
this appeal.   He does not allege that any conversations with his
defense counsel were recorded and admitted at trial, or that the
Department permits such monitoring.      To the contrary, defendant
recognizes that the Operations Order expressly prohibits the
recording and monitoring of conversations with an inmate's
attorney.   Nor does defendant assert that the intention of the
City's regulation or the Department's Operations Order is to
create and collect information strictly for use by the
prosecution against a detainee at trial.     Defendant candidly
admits that the Department has a legitimate interest in recording
and monitoring detainee telephone communications.
            Defendant instead challenges what he describes as the
Department's practice of "automatic, unmonitored harvesting of
intimate conversations of pre-trial inmates," and the subsequent
dissemination of the Department's recordings to District
Attorneys' offices for use in criminal prosecutions.     Defendant
claims the practice violated his right to counsel, exceeds the
scope of the Department's regulatory authority, and was conducted
without defendant's consent.    The claims are either without merit
or unpreserved and therefore do not warrant reversal and a new
trial.
                    A.   Sixth Amendment Violation
            Defendant claims the People, by combing through all the
telephone calls are able to obtain information about a


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defendant's defense strategy and decision-making, outside the
presence of counsel, in violation of his Sixth Amendment right to
counsel.*    Essentially, defendant claims that the Department acts
as an agent for the District Attorney in eliciting potentially
damaging statements merely by recording the calls.    He points to
no individual that the District Attorney's Office, or for that
matter the Department, employed as an agent of the government who
acted in a manner to prompt or provoke information from
defendant.    We therefore find no support in the law or facts of
this case for defendant's constitutional claim.
             The Sixth Amendment right to counsel prohibits the use
of incriminating statements deliberately elicited from a
defendant by government agents (see Fellers v United States, 540
US 519, 524 [2004]; United States v Henry, 447 US 264, 270
[1980]).    As this Court has recognized, the "right to counsel
protects persons, whether in custody or not, against the use of
incriminating statements made as the result of governmental
interrogation, including prosecutorial inducements to make such
statements without the assistance of counsel" (People v
Velasquez, 68 NY2d 533, 536 [1986]).     Moreover, "the right to



     *
       Amici in support of defendant's Sixth Amendment argument
claim that examples exist where the People's access to telephone
calls to friends and family provided insight into possible
defense strategies and preparation, such as whether to employ an
alibi defense. However, since defendant has made no claim that
in his case any trial strategy or defense was revealed to the
prosecutor we do not address this issue.

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counsel protects an accused in pretrial dealings with the
overwhelming, coercive power of the State [], by excluding
incriminating evidence obtained by the State in violation of that
right. Concomitantly, the exclusion of incriminating evidence
obtained by agents of the State operates to deter their
interference with the rights of the accused" (id. at 537
[internal citations omitted]).    Thus, a violation of the right to
counsel requires the "involvement of the State in eliciting that
evidence" (id.)
          Here, the Department did not serve as an agent of the
State when it recorded the calls it turned over to the District
Attorney's Office.   Defendant was not induced by any promise, or
coerced by the Department, to call friends and family and make
statements detrimental to his defense.   Nothing in the record
suggests that the Department solicited, elicited, encouraged or
provoked these conversations.    Moreover, defendant made the
telephone calls aware that he was being recorded, and the mere
act of recording is no different from an informer sitting mute,
not provoking or prompting conversation but merely listening to a
statement freely made.   Under these circumstances, where "the
government's role is limited to the passive receipt of []
information, the informer is not, as a matter of law, an agent of
the government" (People v Cardona, 41 NY2d 333, 335 [1977]).
          Defendant and amici assert that the particular
circumstances of detention support treating the Department as an


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agent because detainees have limited access to outsiders,
including their lawyers.   Thus, left without options available to
those able to make bail, a detainee, out of necessity, makes
statements during telephone conversations that are detrimental to
the defense.   However accurate this description may be of the
realities of the Rikers Island pretrial detention environment,
and the opportunity presented to prosecutors by the conditions
under which detainees are confined, it does not establish the
Department acted as an agent in defendant's case.
                 B.   Defendant's Ultra Vires Claim
           Defendant argues the Department acted beyond the scope
of its authority as provided for in Title 40 RCNY § 1-10 (h), by
automatically disseminating recordings of conversations that are
unrelated to the Department's legitimate purpose of monitoring
threats to institutional security, and without the Department
having first assessed the propriety of the District Attorney's
request.   Regardless of whether the record supports defendant's
allegations of ultra vires conduct, he is not entitled to
suppression or preclusion of the excerpts on these grounds.
           While "violation of a statute does not, without more,
justify suppressing the evidence to which that violation leads"
(People v Greene, 9 NY3d 277, 280 [2007], citing People v
Patterson, 78 NY2d 711, 716-717 [1991]), suppression is warranted
when the violation implicates a constitutionally protected right
(Patterson, 78 NY2d at 717).   However, defendant fails as a


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threshold matter to identify a statutory right violated by the
Department, instead relying on 40 RCNY § 1-10 (h).   We need not
determine in this case whether a regulatory violation also
implicates the concerns that animate the exception recognized in
Patterson because even if it did it would not change our
analysis.   Section 1-10 (h) specifically provides that inmate
telephone calls with attorneys "shall not be listened to or
monitored."   Thus, section 1-10 (h) only implicates the Sixth
Amendment right to counsel to the extent it guards against
violations of privileged attorney-client communications.   It does
not prohibit the Department's supervision over inmates' telephone
conversations with friends and families involving non-privileged
matters, such as the calls at issue in defendant's case.
                         C.   Lack of Consent
            Defendant alleges that he did not consent to the
Department's dissemination of his recorded conversations simply
by using the Rikers Island telephones.    According to defendant,
his consent cannot be implied because he was never informed that
the recordings may be released to the prosecutor.    Defendant
acknowledges, though, that any such defective notice could be
ameliorated by an express Department notification that the
recorded calls may be turned over to the District Attorney.
            However, we do not reach the merits of this claim, or
address whether additional notice by the Department would serve
as a best practice, because the claim itself is unpreserved.     As


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the record establishes, defendant failed to argue to the trial
court, as he does now, that his consent cannot be broader than
the notice provided to him (see People v Gray, 86 NY2d 10, 19
[1995] ["in order to preserve a claim of error...a defendant must
make his or her position known to the court"]).


                                IV.
          Our resolution of the narrowly drawn issues presented
on this appeal should not be interpreted as this Court's approval
of these practices.   Nor does our holding limit the traditional
function of the trial judge in criminal matters.   Rather, due to
the possibility of prejudice inherent in the prosecutor's use of
inmate recordings, the trial judge's role as gatekeeper remains
unchanged and necessary to ensure compliance with constitutional
mandates and the usual rules of evidence and criminal procedure.
          Accordingly, the order of the Appellate Division should
be affirmed.




                              - 11 -
The People of the State of New York v Marcellus Johnson
No. 37




PIGOTT, J. (concurring):
             I agree with the majority's conclusion and with its
analysis of the legal issues defendant has raised.    In my view,
however, the District Attorney's direct and unregulated access to
all of an inmate's non-privileged telephone conversations
deserves further mention.    The current arrangement between the
Department of Corrections and the District Attorney's office
creates a serious potential for abuse and may undermine the
constitutional rights of defendants who are financially unable to
make bail.    Something needs to change.
             Pretrial detainees like defendant are presumed innocent
until proven guilty.    Because they have not yet been convicted of
a crime, the State's only legitimate purpose for detaining them
is to assure their presence at trial, and their liberty may not
be restrained more than necessary to accomplish that result (see
Cooper v Morin, 49 NY2d 69, 81 [1979], cert denied sub nom.
Lombard v Cooper, 446 US 984 [1980]; 4 Sir William Blackstone,
Commentaries on the Laws of England at 300 [explaining that
pre-trial detention is authorized "only for safe custody, and not
for punishment"]).
             The Department of Corrections also has a legitimate


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interest in maintaining the safety and security of its detention
facilities (see Campbell v McGruder, 580 F2d 521, 529 [DC Cir
1978]; Cooper, 49 NY2d at 81), and thus has "broad latitude to
adopt rules that protect the safety of inmates and corrections
personnel and prevent escape or unlawful entry" (United States v
Cohen, 796 F2d 20, 22 [2d Cir 1986], citing Bell v Wolfish, 441
US 520, 547 [1979]).   To that end and for that limited purpose,
the Rules of the City of New York authorize the Department to
record and monitor all inmates' telephone conversations with the
exception of those placed to attorneys, physicians and clergy
(see 40 RCNY § 1-10[h]).   Prisoners are clearly and repeatedly
cautioned that "telephone conversations are subject to electronic
recording and/or monitoring in accordance with Departmental
policy" and that the "use of institutional telephones constitutes
consent to this recording and/or monitoring" (id.).
          The Department's purpose in recording and monitoring
these conversations is limited to ensuring the safety and
security of its facilities, not harvesting evidence for the
prosecution.   Yet the People admit that, unknown to defendants,
they routinely obtain and review such recordings before trial, in
search of anything that can be used against them.   The People
justify this practice principally on the basis of consent:
because the calls were recorded by the Department, and the
detainee knew the Department could record and/or monitor the
calls, he has no expectation of privacy in the conversations and
is not entitled to shield them from the prosecution.   But there

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is "a major distinction between prison authorities having access
to prisoners' phone calls for purposes of prison security and
discipline, and the prosecutors of that pretrial prisoner having
the same access for purposes of gaining advance knowledge of the
pretrial prisoner's trial strategy and potential witnesses,"
particularly in situations (not present in this case) in which a
prisoner is representing himself pro se (United States v Mitan,
2009 WL 3081727 at *12 [ED PA 2009]).
          It has long been known that a defendant at liberty
pending trial already stands a better chance of not being
convicted or, if convicted, of not receiving a prison sentence,
than those who are detained before trial, even after controlling
for factors such as prior criminal record, seriousness of the
charge, bail amount, type of counsel, community ties and
employment status (see Barker v Wingo, 407 US 514, 533 n 35
[1972]; McGruder, 580 F2d at 531, citing Ares, Rankin & Sturz,
The Manhattan Bail Project: An Interim Report on the Use of
Pre-Trial Parole, 38 NYU L Rev 67, 86 [1963] and Rankin, The
Effect of Pretrial Detention, 39 NYU L Rev 641, 655 [1964]).     One
study showed that 64 percent of those continuously in jail from
arraignment to adjudication were sentenced to prison, while only
17 percent of defendants who made bail received prison sentences
(McGinnis v Royster, 410 US 263, 282 [1973] [Douglas, J.,
dissenting], citing Programs in Criminal Justice Reform, Vera
Institute of Justice, Ten-Year Report 1961-1971 [1972]).    Another
study found that 77 percent of defendants who were detained

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before trial were eventually convicted of some offense, compared
to 55 percent of those released pending disposition (Andrew J.
Leipold, How the Pretrial Process Contributes to Wrongful
Convictions, 42 Am Crim L Rev 1123, 1131 n 27 [2005] [citing a
2000 study of the Bureau of Justice Statistics]).
          One explanation for this inequity is "the limitations
imposed by incarceration" (McGruder, 580 F2d at 532).    Pretrial
detention hampers a defendant's preparation of his defense by
limiting his "ability to gather evidence [and] contact witnesses"
during the most critical period of the proceedings (id. at 532;
see also Powell v Alabama, 287 US 45, 57 [1932]).    During that
important pretrial period, defendant, either acting pro se or
with the assistance of counsel, negotiates for dismissal or
reduction of the charges, engages in motions practice, considers
offers to plead guilty and decides which witnesses to call (see
United States v Vitta, 653 F Supp 320, 337 [ED NY 1986], citing
Wald, Pretrial Detention and Ultimate Freedom: A Statistical
Study - Foreword, 39 NYU L Rev 631, 633 [1964]).    Indeed, the
defendant "is often the key source of factual details on which to
base pretrial motions and negotiations" (id.).     A defendant free
on bail or on his own recognizance can therefore make good use of
that liberty by consulting and participating fully with counsel
in time-consuming preparations for trial, including tracking down
witnesses and evidentiary leads (id.).
          The detained suspect cannot make these same
preparations because he lacks a similar ability to contact

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witnesses and gather evidence.    Moreover, any telephone
conversations with family members or potential witnesses are now
turned over to the prosecution for it to review.   Not only do
prosecutors obtain critical information about key defense
witnesses and possible defenses well before those materials would
have been disclosed, but they can also use innocuous details to
their advantage in negotiating plea deals, for example, by
combing through a detainee's recorded conversations for
information about his financial limitations or family
obligations.   The amici suggest that even more unsavory
situations exist, such as a prosecutor persuading a defendant's
wife to testify against him after confronting her with the
defendant's recorded conversations revealing an extra-marital
affair.   Although the prosecutor in this case did not engage in
any of these more troubling actions and defense counsel did not
move for a mistrial or raise a claim of prosecutorial misconduct,
it is easy to see the potential for abuse.
           And what is the alternative, the People say?     Don't
discuss any details about your case over the telephone except
with your attorney; don't ask your spouse to look into a
particular witness's availability or get medical records in
preparation for your defense; don't call your friend to ask for
help tracking down necessary evidence; essentially, don't talk to
anyone other than your attorney about anything related to your
case unless you want the prosecutor to know about it.     This is
not a viable alternative, at least not one that would enable a

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defendant adequately to "prepare a defense . . . without
knowledge of the prosecutors" (Mitan, supra at *8).
            Faced with the possibility that anything a defendant
says over the phone can (and will) be used against him at trial,
the defendant's only real choice is not to use the phones at all.
I cannot sanction that result.    Trial courts must be vigilant to
protect the detainees' constitutional rights, and consideration
should be given to placing limitations on the prosecutor's
ability to obtain these recordings.      Although the recordings in
this case were obtained by the prosecutor through a subpoena
duces tecum and reviewed by Supreme Court prior to disclosure, in
other cases the People'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).
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *   *    *
Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore
and Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur,
Judge Pigott in a separate concurring opinion.

Decided April 5, 2016




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