| People v Russ |
| 2018 NY Slip Op 04597 [162 AD3d 1306] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1](June 21, 2018)
| The People of the State of New York,Respondent, v Rondy Russ, Also Known as Randy Russ, Also Known as Ski,Appellant. |
Neal D. Futerfas, White Plains, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered January 30, 2015, which resentenced defendant upon his conviction of the crime ofconspiracy in the second degree.
Defendant was charged by indictment with conspiracy in the second degree in connectionwith the shooting of a witness who was set to testify against a codefendant. Prior to trial,defendant moved to suppress recorded jail phone calls that he was a party to or that had providedinformation relevant to his prosecution. Supreme Court (Breslin, J.) denied the motion without ahearing. Defendant thereafter pleaded guilty to conspiracy in the second degree and waived hisright to appeal. Defendant, however, reserved his right to seek appellate review of the orderdenying his suppression motion as it pertained to the recorded jail phone calls. Prior tosentencing, defendant moved to withdraw his guilty plea. Supreme Court denied the motion andsentenced defendant, as a second felony offender, to the agreed-upon prison term of 6 to 12years. On appeal, this Court vacated defendant's sentence and remitted the matter forreconsideration of his motion to withdraw the guilty plea based upon defendant's claim that hereceived the ineffective assistance of counsel (118 AD3d 1039, 1040 [2014]). Upon remittal,[*2]County Court denied defendant's motion and resentencedhim, as a second violent felony offender, to a prison term of 6 to 12 years. Defendant nowappeals. We affirm.
We reject defendant's contention that Supreme Court erred in denying his suppression motionwithout a hearing. Taking into account that defendant was aware that the recorded jail phonecalls were monitored by law enforcement, defendant had no reasonable expectation of privacyover them (see People v Diaz, 149AD3d 974, 975-976 [2017]; see also United States v Willoughby, 860 F2d 15, 21-22[2d Cir 1988], cert denied 488 US 1033 [1989]; United States v Amen, 831 F2d373, 379-380 [2d Cir 1987], cert denied 485 US 1021 [1988]; see generally Lanza vNew York, 370 US 139, 143 [1962]). Furthermore, defendant cites no legal authority for hisproposition that it was incumbent upon the People to obtain the recorded jail phone calls via asubpoena. We also note that the People timely disclosed to defendant their intent to use suchcalls as evidence at trial and, other than a cursory claim, defendant failed to establish how he wasprejudiced by the People's failure to use a subpoena. To the extent that defendant asserts that hisright to counsel was violated, we find no merit to this contention given that the record is devoidof evidence that law enforcement officials or an agent thereof deliberately elicited incriminatinginformation from him (see People vJohnson, 27 NY3d 199, 205-206 [2016]).
Defendant's challenge to the severity of his resentence is precluded by his unchallengedwaiver of his right to appeal (see Peoplev Sofia, 62 AD3d 1159, 1160 [2009]). Defendant's remaining contentions have beenconsidered and lack merit.
McCarthy, J.P., Egan Jr., Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.