| People v Cisse |
| 2019 NY Slip Op 01258 [32 NY3d 1198] |
| February 21, 2019 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, April 17, 2019 |
| The People of the State of New York, Respondent, v Ali Cisse, Appellant. |
Argued January 10, 2019; decided February 21, 2019
People v Cisse, 149 AD3d 435, affirmed.
Robert S. Dean, Center for Appellate Litigation, New York City (Matthew Bova of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for respondent.
Brooklyn Defender Services, Brooklyn (Lisa Schreibersdorf and Susannah Karlsson of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Aleksandr B. Livshits and Arielle F. Evans of counsel), for Brooklyn Defender Services and others, amici curiae.
Holwell, Shuster & Goldberg LLP, New York City (Scott M. Danner, Daniel M. Horowitz, Evan H. Stein and Meredith J. Nelson of counsel), The Brennan Center for Justice at NYU School of Law, New York City (Priya Raghavan, Ames Grawert and Bryan Furst of counsel), and Cato Institute, Washington, D.C. (Ilya Shapiro of counsel), for The Brennan Center for Justice at NYU School of Law and another, amici curiae.
Memorandum.
[1] 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 F3d 56, 58 [1st Cir 2008]; United States v Verdin-Garcia, 516 F3d 884, 894 [10th Cir 2008]; United States v Faulkner, 439 F3d 1221, 1224-1225 [10th Cir 2006]; United States v Hammond, 286 F3d 189, 192 [4th Cir 2002]; United States v Van Poyck, 77 F3d 285, 292 [9th Cir 1996]; United States v Horr, 963 F2d 1124, 1126 [8th Cir 1992]; United States v Workman, 80 F3d 688, 696 [2d Cir 1996]; United States v Amen, 831 F2d 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] [c]; 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 NY3d 199 [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.
[2] 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 NY3d 813 [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 NY2d 181, 191 [1992]; People v De Bour, 40 NY2d 210, 223 [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 NY3d 49, 55 [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.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.
Order affirmed, in a memorandum.