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THE ATTORNEY GENERAL’S OFFICE WAS MONITORING A WIRETAP WHEN DEFENDANT WAS OVERHEARD IN A CALL WHICH HAD ORIGINATED FROM THE COUNTY JAIL; LOCAL POLICE WERE ALERTED TO THE CONVERSATION AND THE POLICE OBTAINED THE RECORDING FROM THE JAIL; ALTHOUGH THE JAIL RECORDING WAS NOT AN “INTERCEPTED CONVERSATION” WITHIN THE MEANING OF CPL 700.70, IT WAS EVIDENCE DERIVED FROM AN “INTERCEPTED CONVERSTION” TRIGGERING THE CPL 700.70 NOTICE REQUIREMENTS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division, determined the failure to provide defendant with notice of a recorded phone conversation was improper. The Attorney General’s office was monitoring a wiretap in an unrelated case when defendant was overheard in a call originating from the county jail talking about a fatal hit-and-run accident. Local police were informed of the defendant’s conversation and they obtained a recording of it made by the county jail. The jail recording, which was introduced at trial, was not an “intercepted conversation” within the meaning of Criminal Procedure Law 700.70. But the conversation overheard pursuant to the wiretap which alerted the police to the jail conversation was an “intercepted conversation” which triggered the CPL 700.70 notice:

The People produced the recording … 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. * * *

The substance of the wiretap recording informed law enforcement that the same conversation had been recorded by [jail], leading the Syracuse Police directly to the recording that the People used as evidence at defendant’s trial. In listening to the wiretap, a detective heard incriminating statements about the hit-and-run, identified defendant as the declarant, and directed authorities to the [jail] recording. Clearly, the [jail] call is evidence derived from the wiretap. … [I]t is not certain that police investigating the hit-and-run would otherwise have discovered the call—indeed, the inmate who placed the call had no apparent connection to the hit-and-run incident. Because the wiretap was an “intercepted communication,” the People’s failure to timely furnish defendant with a copy of the eavesdropping warrant and underlying application precluded the admission of the wiretap recording and any evidence derived therefrom—namely, the jail recording—into evidence at trial … . People v Myers, 2023 NY Slip Op 00691, CtApp 2-9-23

Practice Point: Recorded jail conversations are not considered “intercepted conversations” triggering the notice requirements of CPL 700.70. But here the police were alerted to the jail conversation by monitoring a wiretap in an unrelated case. Therefore the jail’s recording of the conversation was evidence derived from an “intercepted conversation” triggering the CPL 700.70 notice requirements.

 

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