New York Court allows concerned parent to record child’s interaction with third party

New York law usually provides that "[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication." Penal Law § 250.05
 

However, the definition of consent, in the context of "mechanical overhearing of a conversation" pursuant to Penal Law § 250.00 (2), includes vicarious consent, on behalf of a minor child. The case of People v Badalamenti, 2016 NY Slip Op 02556 (April 5, 2016) sets out a narrowly tailored test for vicarious consent requiring a court to determine firstly, that a guardian had a good faith belief that the recording of a conversation to which the child was a party was necessary to serve the best interests of the child and secondly, that there was an objectively reasonable basis for such belief.
 

Defendant lived with his girlfriend and her five-year-old son, and on several occasions screamed at the child, who cried and pleaded. The child’s father who had visitation rights denied to return the child to the mother, after a conversation with the child, to which the mother called the police to release the child to her custody.
 

On a subsequent occasion, when the father called up the mother, he could hear both her and the defendant yelling at the child, who was crying. He also heard defendant threatened to beat him. At this point, the father recorded the ongoing instance using a voice memo function on his cell phone. He however, did not call the police. Thereafter, on a different instance when the child was being beaten up, the police came up and arrested both the defendant and the child’s mother. The child then began living with his father, who informed the police of the recording.
 

Defendant was charged with four counts of assault in the second degree, two counts of criminal possession of a weapon in the fourth degree, and one count of endangering the welfare of a child.
 

The recording was played to the jury at defendant's trial, wherein he told the child that he would hit him 14 times for lying and that it would hurt more than the previous beating. The trial court held that the father's action was not eavesdropping, and even if it were, it was justifiable on the basis of the "duty of the father to take some action once he heard [defendant’s] conduct." The court placed its reliance on People v Clark (19 Misc 3d 6, 855 N.Y.S.2d 809 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]) for this reason.
 

The Court of Appeals of New York affirmed and adopted the vicarious consent doctrine, as recognized with respect to the federal wiretap statute in Pollock v Pollock (154 F3d 601 [6th Cir 1998]), and People v Clark, and held the recording to be admissible under CPLR 4506(1) under the vicarious consent doctrine, for a father had good faith, objectively reasonable basis to believe that it was necessary for the welfare of his son to record a violent conversation involving defendant, as the father was concerned for his son's safety, given the volume and tone of defendant's threats.



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