PEOPLE v. CISSE (2019)

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division decision should be affirmed.  Defendant impliedly consented to the monitoring and recording of his telephone calls (see United States v. Conley, 531 F.3d 56, 58 [1st Cir.2008];  United States v. Verdin–Garcia, 516 F.3d 884, 894 [10th Cir.2008];  United States v. Faulkner, 439 F.3d 1221, 1224–1225 [10th Cir.2006];  United States v. Hammond, 286 F.3d 189, 192 [4th Cir.2002];  United States v. Van Poyck, 77 F.3d 285, 292 [9th Cir.1996];  United States v. Horr, 963 F.2d 1124, 1126 [8th Cir.1992];  United States v. Workman, 80 F.3d 688, 696 [2d Cir.1996];  United States v. Amen, 831 F.2d 373, 378–379 [2d Cir.1987] ).  Thus, neither the recording of those phone calls nor the admission of excerpts from the recorded calls violated the New York or federal wiretapping statutes (CPL art 700;  Penal Law §§ 250.00[1], 250.05;  18 USC §§ 2510, 2511[2][e], 2515).  Further, the recording of defendant's nonprivileged phone calls did not violate his right to counsel under the New York State Constitution (see People v. Johnson, 27 N.Y.3d 199, 32 N.Y.S.3d 34, 51 N.E.3d 545 [2016] ).  Defendant's conclusory argument that his statements were “involuntarily made” in violation of CPL 60.45(2)(a) because of the conditions of his confinement is devoid of record support.

The Appellate Division properly considered the suppression hearing record and the colloquy with counsel to determine that the suppression court had concluded that the police engaged in a level one encounter with defendant (see People v. Nicholson, 26 N.Y.3d 813, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ).  The Appellate Division's further holding that the officer lawfully approached defendant to request information – not, as defendant argues, to demand that he stop and respond – based on an objective credible reason (see People v. Hollman, 79 N.Y.2d 181, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992];  People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ), presents a mixed question of law and fact.  Because there is record support for the Appellate Division's determination, it is beyond our further review (see People v. Parker, 32 N.Y.3d 49, 55, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ).

Defendant's claim of a violation of a due process right to prepare for trial is unpreserved for our review.  His other arguments are unpersuasive.

Order affirmed, in a memorandum.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.