Tag: wiretapping

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