The Law On Eavesdropping In New York And The Vicarious Consent Doctrine
People v Badalamenti
2016 NY Slip Op 02556
New York Court of Appeals
Decided on April 5, 2016
Vicarious Consent Doctrine: The eavesdropping law, Penal Law 250.05, contains a clause that gives vicarious consent to parents to record phone calls of their children where it is in the child’s best interest.
Issue: Whether the eavesdropping law (Penal Law 250.05) makes illegal a parent recording a phone call to which their child is a party and consequently whether that recording is inadmissible as evidence under CPLR 4506 (1)
Holding: The recorded call is not eavesdropping under Penal Law 250.05 and is, therefore, admissible evidence. ?The Court of Appeals held that the child’s father was serving the best interest of the child when he recorded the call and there was an objectively reasonable basis for that belief. 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 decision sets out a narrowly tailored test for vicarious consent that requires a court to determine (1) that a parent or 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 (2) that there was an objectively reasonable basis for this belief.
Penal Law 250.05 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 electric communication. Here, the People sufficiently demonstrated that the father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of the infant to record the conversation, such that he could consent to the recording on the infants behalf. Accordingly, the vicarious consent exemption applies, and admission of the subject was not barred by CPLR 4506 (124 AD3D at 674.
Facts: Defendant lives with his girlfriend and her five-year-old son in a two-family house. The landlady, who lived on the main floor, heard on several occasions defendant screaming at the child, and the child crying and pleading. The boys 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 6, 2008, the father tried to reach the mother on her cell phone, 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 cell phone, tried to call the landline telephone in the apartment; no-one answered. At this point, the father decided to record what he was hearing using a voice memo function on his cellphone.
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 but did not contact Police. On October 22, 2008, defendant’s landlady heard screaming and crying and also heard what sounded like a strap being used to beat someone. At his wife’s insistence, the landlord called the Police. Police officers rang the doorbell upstairs, called the landline telephone but no one answered. They then broke down the door and arrested defendant and the child’s mother.
The child was treated at a medical center; he had extensive bruising and swelling on the lower part of his body, including older bruises that were seven to ten days old. The child told an emergency doctor that his mother had hit him, with a belt, as punishment for lying.
At the precinct, the mother gave the police consent to retrieve two belts from the apartment and the defendant was charged with four counts of assault, two counts of criminal possession of a weapon in the fourth-degree, and one count of endangering the welfare of a child. In pretrial proceedings, the People sought, over defendant’s objection, permission to include the fathers saved recording into evidence at trial. Defendant protested that the making of the recording amounted to eavesdropping, prohibited by Penal Law 250.05, and therefore is inadmissible pursuant to CPLR 4506(1). The trial court allowed the recording, holding 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 jury found defendant guilty on all charges, except one assault charge that corresponded to the alleged beating on October 22. The Appellate Division affirmed the trial court’s judgment and adopted 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.
?A Judge of the Court of Appeals granted leave to appeal where the Court affirmed the Appellate Divisions order, holding that the contents of the recording demonstrate that there was an objectively reasonable basis for the father to believe that recording what he was hearing was necessary to serve his son’s best interests.
Legal Analysis: The Court of Appeals held that generally, in New York, the 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 of grand jury, CPLR 4506(1).?While Penal Law 250.05 serves the public policy goal of protecting citizens from eavesdropping, the Court of Appeals are unpersuaded that the New York Legislature intended to subject parents to criminal penalties when, out of concern for the best interests of their minor child, they record that child’s conversations. Given the similarity between the federal wiretap statute and New Yorks eavesdropping statute, and recognizing the fact that the vicarious consent exemption is rooted on a parent’s need to act in the best interest of his or her child, the Court held that they deem it appropriate to adopt it as an exemption to Penal Law 250.05.
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, Penal Law 250.00 [1].
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, Penal Law 250.00[2].
The fathers actions on his cell phone 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 fathers actions amounted to the crime of mechanical overhearing of a conversation, Penal Law 250.05, 250.00[2], and that the recording was 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. The Court of Appeals held that they agree that the fathers actions matched the statutory elements.
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 phone so that the fathers call would go through. The Court of Appeals concluded, however, that the father gave consent to the recording on behalf of his child.
The principle for vicarious consent that the Court of Appeals held they adopt originates in federal case law. The federal wiretapping law, like the New York statute’s interpreted 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, 18 USC 2511 [2] [d].
The Thompson v Dulaney, 838 F Supp 1535 [D Utah 1993], in the context of a custody hearing, the United States District Court for the District Court of Utah held that the parent or guardian of a minor children can give vicarious consent, on behalf of the children, to the recording of conversations to which the children are a party, on the ground that as long as the guardian has a good faith basis that is objectively reasonable for believing that but is necessary to consent on behalf of her minor children to the taping of the phone conversations, vicarious consent will be permissible in order for the guardian to fulfill her statutory mandate to act in the best interests of the children. The children in Thompson were three and five years old; the conversations were with their father.
The Sixth Circuit adopted the rationale of Thompson in an influential decision Pollock v Pollock, 154 F3d 601 [6th Cir 1998] reh en banc denied, 1998 US App LEXIS 29672 [6th Cir 1998] reh denied, 1998 US App LEXIS 29673 [6th Cir 1998]. In Pollock, during a custody dispute, a mother places a device on a telephone in her room in order to record her 14-year old daughter’s conversation with her stepmother. The Sixth Circuit, emphasizing the elements of parental good faith and best interests of the child, held that as long as the guardian has good faith, objectively reasonable basis for the believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording, Pollock, 154 F3d at 610.
The Sixth Circuit noted that the vicarious consent doctrine should not be interpreted as permitting parents to tape any conversation involving their child simply by invoking the magic words I was doing it in his/her best interest, but instead, that there are situations such as verbal, emotional, or sexual abuse by the other parent, that make such a doctrine necessary to protect the child from harm.?In New York, the Appellate Term adopted Pollocks vicarious consent doctrine in People v Clark, 19 Misc 3d 6. In that case, the mother of an eight-year-old boy with autism, who had noticed that her son was coming home from school with bruises, placed a recording device in her son’s backpack?and recorded evidence of a conversation at which the boy was present, inculpating his personal bus matron. The bus matron moved to suppress the recording on the ground that it had been recorded without her consent or the consent of any other party present in violation of Penal Law 250.05. The Appellate Term adopted Pollock and held hat the mother consented to the recording on behalf of her child, since she demonstrated a good faith, objectively reasonable basis to believe that it was necessary for the welfare of her son to make said recording, Clark, 19 Misc 3d at 9. The Appellate Term stressed its decision and should not be interpreted as holding that a minor alone can never provide the requisite consent to record a conversation at which he or she may be present or as permitting parents to take any conversation involving their child, Clark, 19 Misc 3d at 9-10.
The Court of Appeals held that they agree with the approach taken by the Sixth Circuit in Pollock, and by the Appellate Term in Clark. 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 interest. 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.
Here, Defendant contends that Pollock is distinguishable because in that case the parent recorded her child while that child was at her home, whereas here the father recorded conversations involving the child and his mother at his mother’s home. The Court of Appeals concluded, however, that the location of the child is inapposite, so long as the child was lawfully present at the location of the conversation. The interests of a child who is being assaulted or abused are served by having events recorded, for use by police and prosecutors, whether the crimes occur in the home of the person making the recording or somewhere else. In light of the persuasive precedent from other jurisdictions and the reasoning set out above, the Court of Appeals held that it is necessary, in order to serve the best interests of his or her minor child, to create an audio or video recording of a conversation to which the child is a party, the parent of guardian may vicariously content on behalf of the child to the recording.
Applying the vicarious 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. Additionally, the recording, which captures a five-year-old crying while defendant is threatening to hit him 14 times and referring to previous beatings, speaks volumes. The contents of the recording demonstrate that there was an objectively reasonable basis for the father to believe that recording what he was hearing was necessary to serve his son’s best interests. Our holding should not be interpreted as a vehicle to attempt to avoid criminal liability for the crime of eavesdropping when a parent acts in bad faith and lacks an objectively reasonable belief that a recording is necessary in order to serve the best interests of his or her minor child. Penal Law 250.05 and CPLR 4506. Accordingly, the order of the Appellate Division should be affirmed.