Tag: Assault

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. A recording was made by the father of the child, “which was played to the jury at defendant’s trial, defendant told the five-year-old boy that he was going to hit him 14 times for lying and that this would hurt more than a previous beating.” The defendant contested to the use of the recording and that ” the recording amounted to eavesdropping in violation of Penal Law § 250.05, because no party to the conversation consented to the recording, so that the evidence was inadmissible under CPLR 4506…”

The trial court allowed the recording to be admitted into evidence, with respect to the endangering the welfare of a child count, holding that the father’s action was not eavesdropping, and that, 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 relied on People v Clark (19 Misc 3d 6 (App Term, 2d Dept, 2d & 11th Jud Dists 2008), lv denied 10 NY3d 861 [2008]), in which the Appellate Term permitted the admission of a recording based on a theory of vicarious consent.The Appellate Division affirmed the trial court’s judgment (124 AD3d 672 (2d Dept 2015))… [adopting] the vicarious consent doctrine, as recognized with respect to the federal wiretap statute by the Sixth Circuit in Pollock v Pollock (154 F3d 601 [6th Cir 1998]), and in New York by the Appellate Term in People v Clark.

In New York, “[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury” (CPLR 4506 [1]). The Court finds that father’s actions on his cellphone did not constitute “wiretapping” because, with respect to the telephonic communication he recorded, he was “a sender or receiver thereof.” Penal Law § 250.00 (1). “Defendant argues, however, that the father’s actions amounted to the crime of “‘ mechanical overhearing of a conversation’ ” (Penal Law §§ 250.05, 250.00 [2]), and that the recording was consequently inadmissible. The New York Court of Appeals holds that “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.”: more

The case highlights the importance of a New York Criminal Defense Attorney preserving the record and properly exercising juror challenges because, as was the case here, even a seemingly innocuous statement and position by the New York Assistant District Attorney trying the case can result in a reversal. The situation is such that the Criminal Defendant and two other individuals go to a strip club where the Criminal Defendant drinks and pays for a lap dance. Evidently upset at the quality of the dance, a scuffle ensues. The accusation is that the Defendant assaulted another resulting in serious bodily injury.

Here, the record reflects that the People sought to exercise peremptory challenges to exclude four of the five nonwhite individuals comprising the second panel of prospective trial jurors. Indeed, as defense counsel noted, “The only [nonwhite juror] who was not excluded [from this panel] was the daughter-in-law of the former Chief of Police of the Albany Police Department.” In response to defense counsel’s Batson challenge, County Court asked the People — “based upon the peremptory challenges” asserted — to “give a race-neutral reason…for th[o]se selections,” thereby implicitly finding that defendant had made a prima facie showing of discrimination. The People provided such an explanation as to prospective juror Nos. 4, 6 and 17 but refused to offer a race-neutral explanation as to prospective juror No. 2, noting that this juror was the first nonwhite juror that they had sought to exclude by use of a peremptory challenge. As the prosecuting attorney succinctly put it, “I shouldn’t be made to give a reason for the first one.” Defense counsel took issue with the People’s lack of a raceneutral explanation for the exclusion of this juror, noting that “the fact that [prospective juror No. 2] was the first person of color [to be] excluded [was]…merely fortuitous.” County Court rejected defendant’s argument on this point and allowed the People to exercise a peremptory challenge to exclude prospective juror No. 2, as well as prospective juror Nos. 4 and 6.

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