People v Aponte

[*1] People v Aponte 2012 NY Slip Op 51146(U) Decided on June 25, 2012 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2012
Supreme Court, Kings County

The People of the State of New York

against

Rubin Aponte, Defendant.



475/11



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street, 15th Floor

Brooklyn, NY 11201

by ADA Terence Fleming-Warren, Esq.

#718-250-3209

Attorney for the Defendant:

Aida Leisenring, Esq.

Legal Aid Society

111 Livingston Street, 8th Floor

Brooklyn, NY 11201

#718-243-6824

Matthew J. D'Emic, J.

Defendant is accused of, among other things, conspiracy to commit the murder of his wife. In a prior indictment, now consolidated, the defendant was accused of attempted murder of his wife by means of an attack with a hammer. While in jail, he is alleged to have solicited a fellow inmate to help arrange his wife's murder. As a result of that inmate's disclosure of the conversation to the authorities, an undercover officer posing as a hit man went to the jail and recorded his conversation with the defendant. This indictment ensued.

The defendant now moves for a hearing on the fellow inmate's role as police informant (People v Cardona, 4 NY2d 333) as well as the reliability of the information he imparted (People v Darden, 34 NY2d 177). The defendant also seeks to suppress his recorded statement as violative of his rights under the Fourth and Sixth Amendments.

The motion is denied. [*2]

In this case there is no support for the defense contention that the informant was an agent of, or acting at the behest of, the police department or district attorney's office. His relaying of the defendant's desire to have his wife killed was unsolicited. Therefore, no hearing is warranted (People v McKay, 90 AD3d 1492). "Where an informer works independently of the prosecution, provides information on his own initiative, and the government's role is limited to the passive receipt of such information, the informer is not, as a matter of law, an agent of the government (People v Cardona, 41 NY2d 333).

Moreover, there is no need for a hearing to determine the informer's reliability (People v Darden, supra), since his information merely started the investigation. The prosecutor's decision to seek an indictment was based, not on the words of a jailed source, but on the statement of the defendant to an undercover officer (People v Farrow, 98 NY2d 629; People v Harris, 93 AD3d 543; People v Sudler, 75 AD3d 901).

The defense claim that the recording of his conversation in jail is a violation of his Fourth Amendment rights is without merit since there is no expectation of privacy in such settings (U.S. v White, 401 US 745; Lopez v U.S., 373 US 427; People v Washington, 8 NY3d 565). Likewise with respect to his claim of a violation of his Sixth Amendment rights since the defendant was not questioned about the crimes alleged in the initial, unrelated indictment where he was represented by counsel, but only concerning a newly hatched crime (People v Bell, 73 NY2d 153; see also People v Alls, 83 NY2d 94; Illinois v Perkins, 496 US 292).

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.