I. Where a parent has a good faith, objectively reasonable basis to believe that it was necessary for the welfare of her infant child to record a conversation between the child and another person without the other person’ consent, the parent can consent to the recording on the infant child’s behalf and admission of the recording is not precluded by CPLR § 4506.
Penal Law § 250.05 states 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 § 250.00(1) defines “Wiretapping” as “the intentional overhearing or recording of a telephonic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver.”
CPLR § 4506 strictly limits the use of evidence obtained by way of conduct in violation of Penal Law § 250.05 as there is a strong public policy of protecting citizens against eavesdropping. People v. Badalamenti, 124 A.D.3d 672, 673 (2d Dept. 2015). Thus, a recording which is made by way of eavesdropping typically cannot be used at trial.
This is significant because, up until very recently, a parent was not allowed to record their child’s conversations with other people, even if those people were accused of committing serious crimes against the child. It would be considered wiretapping, which carries with it heavy criminal sanctions.
However, New York’s law on this issue is rapidly changing.
A few years ago, it was determined that the Legislature did not intend to subject parents to criminal penalties when, out of concern for the best interests of their minor child, they record that child’s conversations. Badalamenti, 124 A.D.3d at 674 (quoting, State of Iowa v. Spencer, 737 N.W.2d at 134). This is because [i]t is the policy of the law to look after the interests of infants, who are considered incapable of looking after their own affairs, to protect them from their own folly and improvidence, and to prevent adults from taking advantage of them. People v. Clark, 855 N.Y.S.2d 809, 812 (App.Term., 2d & 11th Jud.Dists. 2015) (internal quotations and citations omitted) . Indeed, CPLR § 4506, enacted for the benefit of minors, should not be interpreted as to deprive a minor child from what could be powerful evidence against a perpetrator of crime, including abuse. People v. K.B., 984 N.Y.S.2d 547, 550 (Supreme Ct., Kings County 2014).
In People v. Pollock, the United States Court of Appeals for the Sixth Circuit recognized the vicarious consent exemption to the federal wiretap statute (18 U.S.C. § 2511), holding that:
when a parent or guardian can demonstrate a good faith, objectively reasonable basis to believe that it was necessary for the welfare of the child to record a conversation, a parent may consent to the recording on the child’s behalf and be exempt from liability under the federal wiretap statute.
Badalamenti,124 A.D.3d at 673 (quoting, People v. Pollock, 154 F.3d at 610).
Since Pollock, many state courts with wiretap statutes similar to the federal wiretap statute, including New York state courts, have recognized the vicarious consent exemption. Badalamenti, 124 A.D.3d at 673-74; see also, People v. Bradberry, 131 A.D.3d 800 (4th Dept. 2015); People v. Clark, 855 N.Y.S.2d 809; People v. K.B., 984 N.Y.S.2d 547.
The Appellate Term, Second Department unambiguously recognized and applied the vicarious consent exemption in the 2008 case of People v. Clark. 855 N.Y.S.2d 809 (recording offered at trial where father was charged with endangering the welfare of a child). Seven years later, in People v. Badalamenti, the Second Department, Appellate Division confirmed that where a parent has a good faith, objectively reasonable basis to believe that it was necessary for the welfare of the infant to record the conversation, the parent can consent to the recording on the infant’s behalf and the subject recording is not barred by CPLR § 4506. 124 A.D.3d at 674.
On August 19, 2015, the Fourth Department, Appellate Division adopted and applied the vicarious consent exemption, holding that:
Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations. We note in any event that the victim’s mother consented to the recording, and we conclude that the vicarious consent exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR § 4506.
People v. Bradberry, 131 A.D.3d at 802 (citing, Badalamenti, 124 A.D.3d 672) (some internal citations omitted).
Notably, the Second Department and Fourth Department have been exceedingly clear that when the vicarious consent exemption applies, the admission of any subject recording is not barred by CPLR § 4506. Bradberry, 131 A.D.3d at 802; Badalamenti, 124 A.D.3d at 674; see also, Clark, 855 N.Y.S.2d 809; K.B., 984 N.Y.S.2d 547.
Thus, for example, where, a mother has a good faith, objectively reasonable basis to believe that it was necessary for the welfare of her infant child to record a conversation between the child and the father without the father’s consent, the mother can consent to the recording on the infant child’s behalf. The vicarious consent exemption would apply, the recording would not be in violation of Penal Law § 250.50, and the admission of the recording would no be precluded by CPLR § 4506.
Considering the Second and Fourth’s Department’s position on this issue, it seems that it will be only a matter of time before the First and Third Department’s follow suit.