| People v Chrisostome |
| 2018 NY Slip Op 08321 [167 AD3d 644] |
| December 5, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stephens Chrisostome, Appellant. |
Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Howard B. Goodman,and Michael L. Brenner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MichaelGary, J.), rendered December 18, 2015, convicting him of robbery in the first degree, robbery inthe second degree, and assault in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in permitting the People to offerevidence of a telephone call the defendant made while in pretrial detention at Rikers IslandCorrectional Facility, as the probative value of the defendant's admission to his involvement inthe incident outweighed its prejudicial effect (see People v Franks, 137 AD3d 936, 937 [2016]; People v Moore, 118 AD3d 916,918 [2014]; People v Case, 113AD3d 872, 872-873 [2014]). The court's ruling did not violate the defendant's constitutionalrights to be free from unreasonable searches, to due process, and to equal protection. Contrary tothe defendant's argument, he impliedly consented to the monitoring and recording of histelephone conversations by using the telephones despite being notified in several different waysthat such calls were being monitored (see People v Diaz, 149 AD3d 974, 975 [2017]; People v Koonce, 111 AD3d 1277,1279 [2013]). The defendant's contention that any consent he gave was involuntary isunpreserved for appellate review (seePeople v Abraham, 111 AD3d 756, 757 [2013]; People v Boucher, 97 AD3d 597, 598 [2012]) and, in any event,without merit (see People v Cisse,149 AD3d 435, 436 [2017], lv granted 29 NY3d 1124 [2017]).
The Supreme Court properly denied the defendant's pretrial request to listen to recordings ofother telephone calls he made from Rikers Island. Under the circumstances of this case, the otherrecordings were not subject to the disclosure requirements of CPL 240.20 or 240.45.
The defendant's contention that the Supreme Court improvidently exercised its discretion indenying his request for an expanded identification charge is without merit (see People v Summerville, 138 AD3d897, 898 [2016]; People vPatrick, 102 AD3d 892 [2013]; People v Tavarez, 55 AD3d [*2]932, 932 [2008]). The instruction given sufficiently apprised thejury that the reasonable doubt standard applied to identification (see People v Knight, 87NY2d 873, 874 [1995]; People v Whalen, 59 NY2d 273, 279 [1983]; People vPatrick, 102 AD3d at 892; People vCox, 54 AD3d 684, 685 [2008]), and the charge as a whole was otherwise adequate toapprise the jury of the correct legal principles to be applied to the case (see People vDavis, 250 AD2d 776 [1998]).
The defendant failed to preserve for appellate review his contention that the Supreme Courtconsidered improper factors in imposing sentence (see CPL 470.05 [2]; People v Garson, 69 AD3d 650,652 [2010]; People v Campbell, 54AD3d 959, 960 [2008]; People vBrokenbough, 52 AD3d 525 [2008]). In any event, the defendant's contention is withoutmerit (see People v Olds, 24 AD3d571, 572 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Austin, J.P., Roman, Duffy and Christopher, JJ., concur.