The People v. Marcellus Johnson
27 N.Y.3d 199
NY2016Background
- Defendant was detained at Rikers Island after arrest on robbery charges; the Department recorded non-privileged inmate telephone calls pursuant to 40 RCNY 1-10 and Department Operations Orders.
- Notices (signs, inmate handbook, and an audible message at call start) informed inmates calls "may be recorded and monitored."
- The Department retained recordings and, upon request and approval by the Deputy Commissioner for Legal Matters, provided copies to City District Attorneys.
- The People obtained dozens of defendant's recorded calls via subpoena and played excerpts from nine calls at trial, which included incriminating statements and vulgar commentary.
- Defendant moved in limine to preclude use of the recordings on grounds of unauthorized disclosure, Sixth Amendment violation, and lack of consent; the trial court denied the motion; convictions followed and the Appellate Division affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sixth Amendment (right to counsel) | People: Recording/turnover did not involve government elicitation; Department was passive and not agent | Defendant: Department acted as agent of prosecution by harvesting detainee calls, undermining counsel-attached rights | Court: No Sixth Amendment violation — passive recording/turnover alone is not government elicitation or agent conduct |
| Ultra vires (exceeding regulatory authority) | People: Department acted within monitoring/recording authority; calls non-privileged | Defendant: Dept. exceeded 40 RCNY 1-10 by disseminating recordings unrelated to institutional security without individualized assessment | Held: Even if regulatory violation occurred, defendant identified no statutory right warranting suppression; 1-10(h) protects privileged attorney calls only |
| Consent / Notice | People: Inmate notice that calls may be recorded/monitored suffices; consent implied by use | Defendant: Notice did not disclose that recordings could be provided to prosecutors, so consent was not informed | Held: Claim unpreserved — defendant failed to raise this specific objection at trial; court did not reach merits |
| Prejudice / Trial-court gatekeeping | People: Admission governed by usual evidentiary rules; trial court supervised disclosure | Defendant: Prosecutor access to detainee calls risks prejudice and undermines preparation for detained defendants | Held: Court affirmed but emphasized trial judges remain gatekeepers; concurrence urged reconsideration of blanket DA access due to potential abuse |
Key Cases Cited
- Fellers v. United States, 540 U.S. 519 (right to counsel forbids statements deliberately elicited by government agents)
- United States v. Henry, 447 U.S. 264 (use of informers as government agents to elicit statements violates Sixth Amendment)
- People v. Velasquez, 68 N.Y.2d 533 (right to counsel bars use of incriminating evidence obtained by government interrogation/inducement)
- People v. Cardona, 41 N.Y.2d 333 (government’s passive receipt of information from an informer does not make the informer a government agent)
- People v. Greene, 9 N.Y.3d 277 (statutory violation alone does not automatically justify suppression)
- People v. Patterson, 78 N.Y.2d 711 (suppression warranted where statutory violation implicates constitutional right)
- People v. Gray, 86 N.Y.2d 10 (preservation requirement: defendant must make position known to the court)
- Barker v. Wingo, 407 U.S. 514 (pretrial conditions affect fairness and ability to prepare a defense)
- Cooper v. Morin, 49 N.Y.2d 69 (pretrial detention may not be more restrictive than necessary)
- Bell v. Wolfish, 441 U.S. 520 (broad deference to prison regulations for safety and security)
- Campbell v. McGruder, 580 F.2d 521 (pretrial detention limits defendant’s ability to prepare a defense)
- McGinnis v. Royster, 410 U.S. 263 (studies showing pretrial detainees suffer worse outcomes)
- Powell v. Alabama, 287 U.S. 45 (right to counsel and fair opportunity to prepare defense)
- United States v. Cohen, 796 F.2d 20 (prison rules and safety justify monitoring under certain circumstances)
- United States v. Vitta, 653 F. Supp. 320 (pretrial detention hampers defendant’s preparation and access to witnesses)