NY: NYC DoC recording jail calls was not as agent of DA; no Sixth Amd. violation

The recording of non-attorney jail calls from Rikers Island and turning them over to the DA’s office does not violate the constitution. Defendant was warned by signs, and thus knew, his calls were being recorded. The NYC Department of Corrections was not acting as an agent of the DA in recording the calls. Thus, the DA learning of the defense strategy from non-attorney calls did not violate the Sixth Amendment right to a fair trial. People v. Johnson, 2016 N.Y. LEXIS 752, 2016 NY Slip Op 02552 (April 5, 2016):

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 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.

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