People v. Diaz
53 N.Y.S.3d 94
N.Y. App. Div.2017Background
- Defendant convicted by jury in Kings County of first‑degree robbery and first‑degree burglary; appealed.
- At trial defense advanced a misidentification theory; counsel did not request a jury charge on the affirmative defense that the displayed object was not a loaded, operable firearm.
- Recorded telephone calls the defendant made from Rikers Island were admitted at trial; recordings were provided to prosecutors by the NYC Department of Correction (DOC).
- DOC notice of monitoring was given via inmate handbook, posted signs by phones, and a pre‑call recorded message; it did not explicitly state recordings would be turned over to prosecutors.
- Majority affirmed: counsel’s tactical decision not to seek the affirmative‑defense charge was reasonable; defendant impliedly consented to monitoring/recording and dissemination given the DOC notices; trial court retains gatekeeping role on probative value vs. prejudice.
- Dissent would reverse: contends detainees are entitled to express notice before recordings are shared with prosecutors and that dissemination without such notice undermines fairness and may prejudice pretrial detainees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not requesting an instruction that the displayed object was not a loaded, operable weapon | Counsel’s failure deprived defendant of effective assistance because the affirmative defense should have been charged | Counsel deliberately pursued a misidentification defense and requesting the instruction would have created inconsistent evidence | Held: No ineffective assistance — declining the charge was a reasonable trial strategy |
| Whether recorded jail telephone calls violated right to counsel when admitted at trial | Recordings properly admitted; detainee impliedly consented by using phones after notice | Admission violated right to counsel and/or Sixth Amendment because detainee was not informed recordings could be turned over to prosecutors | Held: No constitutional deprivation; recordings admissible where detainee had notice monitoring/recording occurred and impliedly consented; court must still balance probative value vs prejudice |
| Whether DOC notice limited consent to security purposes only (i.e., not for prosecution use) | Notice and signs put detainee on notice that calls are recorded/monitored and that telephone use constitutes consent to monitoring; dissemination to prosecutors reasonably implied | Lack of explicit notice that recordings would be provided to prosecutors means no consent to dissemination; security‑only purpose does not permit sharing with prosecution | Held: Implied consent to monitoring/recording (through handbook, signs, recorded message) encompassed dissemination to prosecutors; absence of express dissemination warning does not render recordings inadmissible, though better practice would be explicit notice |
| Whether admission of recordings was harmless and sentence excessive | Admission did not violate rights; sentence not excessive | Admission of recordings without consent to dissemination caused prejudice warranting new trial | Held: Error not shown; recordings admissible; sentence not excessive; conviction affirmed |
Key Cases Cited
- People v Miaram, 97 A.D.3d 606 (affirming related jury instruction principles) (supporting discussion of affirmative defense to robbery/burglary)
- People v Casseus, 120 A.D.3d 828 (trial strategy can justify not requesting jury instruction)
- People v Howard, 22 N.Y.3d 388 (strategic choices and evidentiary consistency considerations)
- People v Gordon, 92 A.D.3d 580 (evidence consistency and defense strategy)
- People v Acevedo, 84 A.D.3d 1390 (court not required to give charge sua sponte when it would conflict with defense theory)
- People v Johnson, 27 N.Y.3d 199 (discusses DOC recordings, gatekeeper role of trial court, and notice concerns)
- People v Roberts, 139 A.D.3d 985 (addressing right to counsel and recorded calls)
- People v Jackson, 125 A.D.3d 1002 (consent to taping can be inferred from knowledge of monitoring)
- People v Koonce, 111 A.D.3d 1277 (inmate notice and consent to monitoring/recording)
- People v Harris, 26 N.Y.3d 1 (trial court must weigh probative value against prejudice)
- Bell v. Wolfish, 441 U.S. 520 (prisoner and pretrial detainee constitutional protections)
- People v Suitte, 90 A.D.2d 80 (sentencing review standard)