By Acosta, P.J., Sweeny, Webber, Kahn, Oing, JJ.6990. PEOPLE, res, v. Jerome Holmes, def-ap — Christina Swarns, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Freshfields Bruckhaus Deringer US LLP, New York (Benjamin A. Gianforti of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for res — Judgment, Supreme Court, New York County (Michael J. Obus, J. at motion to preclude recorded call; Daniel P. Conviser, J. at jury trial and sentencing), rendered December 16, 2014, as amended February 18, 2015, convicting defendant of robbery in the first degree, three counts of robbery in the second degree, two counts of criminal possession of a weapon in the third degree, and three counts of perjury in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed.Error, if any, in the receipt of DNA evidence was harmless, under the standard for constitutional error, in light of the overwhelming non-DNA evidence of defendant’s guilt (see People v. Crimmins, 36 NY2d 230 [1975]).The motion court correctly declined to preclude a recorded telephone call that defendant made while detained before trial. Defendant’s challenge to the admissibility of the call, made primarily on Fourth Amendment grounds, is unavailing. Defendant impliedly consented to the recording of the call based on his receipt of multiple forms of notice that his calls would be recorded, and he was not entitled to separate notice that the calls might be subpoenaed by prosecutors (see e.g. People v. Goding, 146 AD3d 642 [1st Dept 2017], lv denied 29 NY3d 1079 [2017]; People v. Dickson, 143 AD3d 494 [1st Dept 2016], lv denied 28 NY3d 1183 [2017]). Recordings of detainees’ calls are made for security purposes, and not for the purpose of gathering evidence. However, like any other nonprivileged evidence that is possessed by a nonparty and is relevant to a litigation, it may be subject to a lawful subpoena. Accordingly, once defendant consented to the recording of his phone calls, and chose nevertheless to make a call containing a damaging statement, he had no reasonable expectation that the call would be immune from being subpoenaed by the prosecution.We perceive no basis for reducing the sentence.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Acosta, P.J., Sweeny, Webber, Kahn, Oing, JJ.6991. In re Inuel S., and Another, Dependent Children Under the Age of Eighteen Years, etc., Eunice F., a/k/a Eunice M., res-ap, Graham Windham Services to Families and Children, pet-res — Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for ap — Carrieri & Carrieri, P.C., Mineola (Ralph R. Carrieri of counsel), for res — Dawne E. Mitchell, Jr., The Legal Aid Society, New York (Seymour W. James, Jr. of counsel), attorney for the children.—Order, Family Court, Bronx County (Valerie Pels, J.), entered on or about July 18, 2016, which, upon a fact-finding determination that respondent mother suffers from a mental illness as defined by Social Services §384-b(6), terminated her parental rights to the subject children and committed custody and guardianship of the children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.The agency established by clear and convincing evidence that the mother is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the subject children (see Matter of Thaddueus Jacob C. [Tanya K.M.], 104 AD3d 558 [1st Dept 2013]). The evidence included a report and testimony from a court-appointed psychologist who, after examining the mother and reviewing medical and other records, opined that she suffers from a mental illness, schizoaffective disorder, bipolar type, and that, as a result, if the children were returned to her care, they now and in the foreseeable future would be at risk of becoming neglected (see Social Services Law §384-b[6]; Matter of Savannah Love Joy F. [Andrea D.], 110 AD3d 529 [1st Dept 2013], lv denied 22 NY3d 858 [2014]). Under the circumstances presented, where the expert’s opinion was based on the mother’s long history of mental illness, her noncompliance with psychiatric treatment, and the pervasive nature of her deficits and lack of insight, it was not necessary for the psychologist to observe interactions between the mother and children before reaching his conclusions (see Matter of Brianna Monique F. [Monique F.], 129 AD3d 638, 639 [1st Dept 2015]). Furthermore, additional evidence before the court supported the psychologist’s opinion, including the testimony of the mother’s older daughter and the mother herself (see Matter of Abigail Bridget W. [Janice Antoinette W.], 112 AD3d 468 [1st Dept 2013]).We have considered the mother’s remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
