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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Alfredo PEREZ, Appellant.


Decided: December 26, 2018

SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ. Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.


Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael Gary, J.), rendered June 23, 2016, convicting him of assault in the second degree (two counts) and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his waiver of his right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05[2];  People v. Williams, 149 A.D.3d 986, 50 N.Y.S.3d 305;  People v. Lumpkins, 11 A.D.3d 563, 782 N.Y.S.2d 804;  People v. Magnano, 158 A.D.2d 979, 551 N.Y.S.2d 131, affd 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572).  In any event, the defendant's contention is without merit (see CPL 320.10[2];  People v. Badden, 13 A.D.3d 463, 785 N.Y.S.2d 748;  People v. Brunson, 307 A.D.2d 323, 324, 762 N.Y.S.2d 509;  People v. Jones, 293 A.D.2d 627, 628, 740 N.Y.S.2d 242;  People v. Soyouzov, 235 A.D.2d 439, 653 N.Y.S.2d 355).  We agree with the Supreme Court's determination that the defendant's waiver was knowing, intelligent, and voluntary (see People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622).

The defendant contends that a recording of a 911 emergency telephone call made by the complainant should not have been admitted into evidence at trial because the recorded statements were hearsay.  This contention is unpreserved for appellate review (see CPL 470.05[2] ).  In any event, the defendant's contention is without merit, as the 911 call falls within the excited utterance and present sense impression exceptions to the rule against hearsay (see People v. Buie, 86 N.Y.2d 501, 511, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Brown, 80 N.Y.2d 729, 734, 594 N.Y.S.2d 696, 610 N.E.2d 369;  People v. Quinn, 138 A.D.3d 889, 890, 28 N.Y.S.3d 347;  People v. Maitland, 136 A.D.3d 1058, 26 N.Y.S.3d 190;  People v. Clarke, 101 A.D.3d 897, 898, 957 N.Y.S.2d 164).

The defendant contends that excerpts of a telephone call he made to his girlfriend while detained on Rikers Island Correctional Facility should not have been admitted into evidence.  He contends that because he did not consent to the content of the calls being used by the prosecution at trial, his Fourth Amendment rights were violated.  This contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Daniels, 140 A.D.3d 1083, 34 N.Y.S.3d 161).  In any event, this contention is without merit.  The defendant impliedly consented to the monitoring and recording of his telephone conversations by using the prison telephones despite being notified that such calls were being monitored and recorded.  Given these notifications, it was unreasonable for the defendant to presume an expectation of privacy regarding the content of those conversations (see People v. Diaz, 149 A.D.3d 974, 975–976, 53 N.Y.S.3d 94;  see also People v. Jackson, 125 A.D.3d 1002, 1003–1004, 2 N.Y.S.3d 625).

The defendant was not denied the effective assistance of counsel.  Viewed in totality, the defendant's attorney provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).