Court Of Appeals #10

In the middle of the 2015-2016 Term, the Court of Appeals released an unusual assortment of decisions relating to a parent's right to record a child's telephone calls; the consequences of the filming and broadcast of medical treatment without the patient's consent; the sufficiency as notice of a claim of a letter by an insured to a carrier; the effect of new zoning regulations on a developer's rights; and the rights created by an erroneously-issued permit.

May a parent record his/her child's conversation on a telephone without violating New York's eavesdropping statute based upon vicarious consent? Answer: Yes, if the parent has a good faith belief that the recording of the child's conversation was necessary to serve the best interests of the child and there was an objectively-reasonable basis for that belief.

People v. Badalamenti, 2016 NY Slip Op 02556 (decided on April 5, 2016)

The Court of Appeals summarized the facts:

In 2008, defendant lived with his girlfriend and her five-year-old son on the second floor of a two-family house[.]

The boy's father had visitation rights, and in the spring of 2008 he noticed that when it was time for his son to return home after a visit, the child would start crying and refuse to get ready. On May 4, 2008, after a conversation with his son, the father told the mother he would not return the child to her. She contacted the police, who appeared at the father's home and required that he release the child to the mother's custody.

On May 6, 2008, the father tried to reach the mother on her cellphone, using his own cellphone. He called several times without reaching her; the calls went directly to voicemail. Finally, a call went through, but no-one said anything to the father. However, the line was open, and the father was able to hear what was occurring in defendant's apartment. Defendant and the child's mother were yelling at the child, who was crying. Defendant threatened to beat him and punch him in the face. The father, using another cellphone, tried to call the landline telephone in the apartment, but no-one answered.

At this point, the father decided to record what he was hearing using a voice memo function on his cellphone. On the recording, 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 father saved the recording on his cellphone. He did not contact the police.

Several months later, defendant was arrested when his landlord called the police. The child was treated at a medical center for extensive bruising and told the police his mother had beat him. The father thereafter gave the audio recording to the police.

Badalamenti was charged with assault, criminal possession of a weapon, and endangering the welfare of a child. Supreme Court allowed the recording to be admitted into evidence, with respect to the count of endangering the welfare of a child, 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 prosecution played the recording for the jury.

The father testified concerning the circumstances leading to the recording. Asked whether he had been afraid for his son's safety when he was listening to what was occurring in the apartment, he responded that he had not thought that defendant would physically harm his son, but was afraid for the boy to the extent that defendant's "tone was getting louder and louder."

Defendant was found guilty of all charges, except one assault charge that corresponded to the beating alleged to have occurred on October 22.

Upon appeal:

[D]efendant argued...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 Appellate Division affirmed the trial court's judgment. The court adopted the vicarious consent doctrine, as recognized with respect to the federal wiretap statute by the Sixth Circuit in Pollock v Pollock, and in New York by the Appellate Term in People v Clark.

The Court of Appeals summarized the applicable law:

Generally, 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"[.]

Penal Law § 250.05, in turn, 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." Eavesdropping is a class E felony.

Wiretapping is defined as "the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment"[.]

"'Mechanical overhearing of a conversation' means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment"[.]

The Court held that:

The 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"...Defendant argues, however, that the father's actions amounted to the crime of "mechanical overhearing of a conversation"..., and that the recording was consequently inadmissible. Defendant points out that the father deliberately used a device to record a conversation between defendant, the child, and his mother, without obtaining the consent of any of those three people, and without being present at, or a party to, the conversation. We agree that the father's actions matched the statutory elements. Certainly, mechanical overhearing of a conversation or "bugging" has been interpreted to include the interception of face-to-face communications by means of a recording device on a telephone...This, however, does not end our analysis.

The analytical core of this case is consent. The father did not ask for or obtain the consent of any party to the conversation. Nor is there evidence in the record that the mother intentionally manipulated her cellphone so that the father's call would go through. We conclude, however, that the father gave consent to the recording on behalf of his child.

Explicating that:

The principle of vicarious consent that we adopt originates in federal case law. The federal wiretapping law, like the New York statutes we interpret here, contains an exception for the interception of a communication with the consent of one party. "It shall not be unlawful under this chapter . . . for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State"[.]

This Court agrees with the approach taken by the Sixth Circuit in Pollock, and by the Appellate Term in Clark, as applied below. There is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child's conversation out of a genuine concern for the child's best interests. By contrast, the vicarious consent doctrine recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in his or her child's best interests. Yet it also recognizes important constraints on that right, by requiring that the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable.

And concluding that:

Applying the vicarious consent doctrine to the present case, the record supports the conclusion of the courts below that the People have sufficiently demonstrated that the father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of his son to record the violent conversation he found himself listening to. The father testified that he was concerned for his son's safety because of the volume and tone of defendant's threats. Although other portions of the father's testimony reveal that he may have been in doubt about whether physical harm would ensue, it does not follow that he had no good faith reason to believe that it was necessary to record the conversation. Furthermore, the evidence that the child had previously expressed fear of returning home adds support to the conclusion that the father had a good faith basis, despite his delay in providing the recording to the police. While defendant argues that the father should have contacted the police earlier, his failure to report what he had heard immediately does not diminish the evidence of good faith.

Moreover, the father's basis is objectively reasonable. The father had heard defendant and the child's mother yelling at the five-year-old child, and defendant threatening to beat him. Furthermore, he could not get through to the apartment on the landline phone. It was reasonable for the father to conclude that making the recording was necessary to serve the child's best interests...