Admissibility of Evidence - Motion to Suppress Illegally Obtained Eavesdropping Evidence under CPLR § 4506
The recording of conversations between family members on an extension telephone is illegal, and the tape recorded conversations are not admissible into evidence. Unless the permission of at least one party to the telephone conversation has been obtained, the private tape recording is illegal and may be suppressed.[1] In such case, a motion to suppress the illegally obtained evidence should be made.[2]
It has been held that without proof of consent of at least one party to the conversations, the taped conversations may not be put into evidence. The clear and unequivocal intent of the Legislature, as expressed in Civil Practice Law and Rules §4506(1), is to exclude illegally obtained wiretap evidence "in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body or other authority of this state, or a political subdivision thereof." Such specific language of exclusion made applicable to legislative committees and administrative bodies that are not bound by strict rules of evidence applies as well to the Family Court. [3]
Tapped phone conversations are inadmissible where neither party to the conversation consents to be recorded,[4] and where the authenticity of the recording is not established by clear and convincing proof. [5]
[1] Pica v Pica (1979, 2d Dept) 70 App Div 2d 931, 417 NYS2d 528; But see Matter of Young v Young, 84 A.D.3d 972, 921 N.Y.S.2d 895 ( 2d Dept., 2010) ( application of the exclusionary rule to prevent the court from considering factors relevant to the “best interests” determination, pertaining here to the condition of the home of a parent who was seeking custody, would have a "detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children," which outweighed the deterrent effect of applying the exclusionary rule).
[2] See CPLR 4506.
[3] See Berk v Berk (1979, 2d Dept) 70 App Div 2d 943, 417 NYS2d 785 (mother’s motion to suppress, pursuant to CPLR §4506, certain taped telephone conversations between the mother and children which were obtained without the mother's consent, was granted.) See also 84 A.D.3d 972, 921 N.Y.S.2d 895 ( 2d Dept., 2010)
[4] Cronin v. Cronin, 392 N.Y.S.2d 530.
[5] In Matter of Williams v Rolf, 2016 WL 6884034 (3d Dept.,2016) the Appellate Division observed that the predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the [witness=s] concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible@ (People v. Ely, 68 N.Y.2d 520, 522 [1986]). The foundation laid for the introduction of the recording into evidence was the mother=s testimony that the telephone call was made by the child using the mother=s cell phone, the voices on the recording were hers and the child=s, she listened to the recording A[q]uite a few@ times and her friend was present when the recording was made. After this testimony, Family Court admitted the recording into evidence. The mother=s testimony was insufficient to authenticate the recording because she did not testify as to whether or not the recording was the complete and unaltered conversation between her and the child, and Athere was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody@ (Grucci v. Grucci, 20 NY3d at 897).
The recording of conversations between family members on an extension telephone is illegal, and the tape recorded conversations are not admissible into evidence. Unless the permission of at least one party to the telephone conversation has been obtained, the private tape recording is illegal and may be suppressed.[1] In such case, a motion to suppress the illegally obtained evidence should be made.[2]
It has been held that without proof of consent of at least one party to the conversations, the taped conversations may not be put into evidence. The clear and unequivocal intent of the Legislature, as expressed in Civil Practice Law and Rules §4506(1), is to exclude illegally obtained wiretap evidence "in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body or other authority of this state, or a political subdivision thereof." Such specific language of exclusion made applicable to legislative committees and administrative bodies that are not bound by strict rules of evidence applies as well to the Family Court. [3]
Tapped phone conversations are inadmissible where neither party to the conversation consents to be recorded,[4] and where the authenticity of the recording is not established by clear and convincing proof. [5]
[1] Pica v Pica (1979, 2d Dept) 70 App Div 2d 931, 417 NYS2d 528; But see Matter of Young v Young, 84 A.D.3d 972, 921 N.Y.S.2d 895 ( 2d Dept., 2010) ( application of the exclusionary rule to prevent the court from considering factors relevant to the “best interests” determination, pertaining here to the condition of the home of a parent who was seeking custody, would have a "detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children," which outweighed the deterrent effect of applying the exclusionary rule).
[2] See CPLR 4506.
[3] See Berk v Berk (1979, 2d Dept) 70 App Div 2d 943, 417 NYS2d 785 (mother’s motion to suppress, pursuant to CPLR §4506, certain taped telephone conversations between the mother and children which were obtained without the mother's consent, was granted.) See also 84 A.D.3d 972, 921 N.Y.S.2d 895 ( 2d Dept., 2010)
[4] Cronin v. Cronin, 392 N.Y.S.2d 530.
[5] In Matter of Williams v Rolf, 2016 WL 6884034 (3d Dept.,2016) the Appellate Division observed that the predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the [witness=s] concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible@ (People v. Ely, 68 N.Y.2d 520, 522 [1986]). The foundation laid for the introduction of the recording into evidence was the mother=s testimony that the telephone call was made by the child using the mother=s cell phone, the voices on the recording were hers and the child=s, she listened to the recording A[q]uite a few@ times and her friend was present when the recording was made. After this testimony, Family Court admitted the recording into evidence. The mother=s testimony was insufficient to authenticate the recording because she did not testify as to whether or not the recording was the complete and unaltered conversation between her and the child, and Athere was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody@ (Grucci v. Grucci, 20 NY3d at 897).
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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