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New York Appellate Court Upholds Admission of Recorded Jailhouse Phone Call Between Defendant and Girlfriend

old fashioned phoneUnderstanding which types of evidence can be used against you during a New York criminal investigation or New York criminal trial is extremely important. Having a seasoned and vigilant New York assault defense lawyer at your side throughout the entire process can mean the difference between knowing when to object to a proffered piece of evidence or unknowingly letting it slip by and be used against you.

In a recent New York appellate opinion, the defendant challenged his conviction based on the trial court’s decision to allow evidence of a phone call between the defendant and his former romantic partner at trial to be used as admission evidence. The defendant was charged with multiple counts of trespass, criminal mischief, and assault involving his ex-girlfriend. Through evidence offered at trial, it was clear that the defendant and his former girlfriend had a rocky relationship. The prosecution provided evidence regarding a series of events. In one instance, the defendant allegedly broke the ex-girlfriend’s cable box and struck her face. In another, he allegedly pushed her down and struck her chest, resulting in two broken ribs. The third incident involved the defendant’s unauthorized entry into the ex-girlfriend’s apartment, where he remained until police officers arrested him.

The prosecution did not rely on the victim’s testimony, conceding that she suffered from drug and alcohol abuse as well as mental health issues, a history of violence toward romantic partners, and a lengthy criminal record. During trial, the prosecution requested permission to play a tape recording of a telephone conversation between the defendant and the ex-girlfriend that was made while the defendant was incarcerated. The prosecution offered the tape as an adoptive admission by silence of the defendant’s guilt. The ex-girlfriend continually accused the defendant of causing her to suffer broken ribs, and the defendant did not deny the accusations. The trial court did not deny use of the tape recording but instead provided the jury with an instruction regarding the tape, encouraging them to consider carefully whether the defendant’s silence in response to the ex-girlfriend’s statements regarding the broken ribs constituted an admission of guilt.

The jury convicted the defendant of multiple charges of assault, criminal mischief, and criminal trespass. The Appellate Division upheld the finding, deeming the trial court’s admission of the recording appropriate. The defendant appealed.

The reviewing court first defined an adoptive admission as occurring when one party acknowledges or assents to a statement that someone else already made, rendering it the party’s own admission. The court also noted that assent can be performed through silence when a reasonable person would protest the accusation and that courts have allowed evasive or equivocal responses to satisfy the assent requirement. The court then reviewed the burden that the prosecution must satisfy when attempting to use silence as assent. It must prove that the defendant understood and heard the statement and would have been reasonably expected to deny the statement.

Applying this standard to the case at hand, the appellate court concluded that the lower court did not commit a reversible error when it allowed the jury to listen to the recorded phone conversation between the defendant and the victim. The appellate court was also satisfied with the lower court’s jury instruction, which provided the jury with the appropriate framework for evaluating the probative value of the defendant’s silence.

If you are involved in a criminal investigation or facing a criminal prosecution, you need to contact a knowledgeable and experienced New York criminal defense lawyer as soon as possible. Although you may think that working with the authorities and speaking with them will help clear your name, it can result in more problems than you may realize. The seasoned team of assault defense lawyers at Tilem & Associates are prepared to help you fight for the justice that you deserve and to ensure that you are treated fairly at each phase of the legal process. Call us now at 1-877-377-8666 or contact us online to schedule your free consultation.

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