Admissibility of Evidence - Suppression of Illegally Obtained Eavesdropping Evidence - Civil Practice Law and Rules § 4506(a) - Vicarious Consent for Child
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 or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof.[1]
An aggrieved person[2] who is a party in any civil trial, hearing or proceeding before any court may move to suppress the contents of any overheard or recorded communication, conversation or discussion or evidence derived therefrom, on the ground that the communication, conversation or discussion was unlawfully overheard or recorded. The motion must be made before a justice of the Supreme Court in the judicial district in which the trial, hearing or proceeding is pending. The aggrieved person must allege in his motion papers that an overheard or recorded communication, conversation or discussion, or evidence derived therefrom, is subject to suppression under subdivision three of CPLR 4506 and that such communication, conversation or discussion, or evidence, may be used against him in the civil trial, hearing or proceeding in which he is a party. The motion must be made prior to the commencement of the trial, hearing or proceeding unless there was no opportunity to make the motion or the aggrieved person, was not aware of the grounds of the motion. If the motion is granted, the contents of the overheard or recorded communication, conversation or discussion or evidence derived therefrom, may not be received in evidence in any trial, hearing or proceeding.[3]
The Court of Appeals has held 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. It established 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. The Court cautioned that its 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 cannot be so easily circumvented. The procedural vehicles of pretrial hearings must be used to determine the admissibility of any recordings and will result in the suppression of any parent’s recording that a court determines did not meet the narrowly tailored and objective test. In making this admissibility determination, a court should consider the relevant factors, which include, but are not limited to, the parent’s motive or purpose for making the recording, the necessity of the recording to serve the child’s best interests, and the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.[4]
[1] Civil Practice Law and Rules § 4506(a).
[2] The statute provides that the term "aggrieved person" means: (a) A person who was a sender or receiver of a telephonic or telegraphic communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver, by means of any instrument, device or equipment; or (b) A party to a conversation or discussion which was intentionally overheard or recorded, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment; or (c) A person against whom the overhearing or recording described in paragraphs (a) and (b) was directed.
[3] Civil Practice Law and Rules § 4506(3) and (4).
[4] People v Badalamenti, 27 N.Y.3d 423, 54 N.E.3d 32, 34 N.Y.S.3d 360 (2016)
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 or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof.[1]
An aggrieved person[2] who is a party in any civil trial, hearing or proceeding before any court may move to suppress the contents of any overheard or recorded communication, conversation or discussion or evidence derived therefrom, on the ground that the communication, conversation or discussion was unlawfully overheard or recorded. The motion must be made before a justice of the Supreme Court in the judicial district in which the trial, hearing or proceeding is pending. The aggrieved person must allege in his motion papers that an overheard or recorded communication, conversation or discussion, or evidence derived therefrom, is subject to suppression under subdivision three of CPLR 4506 and that such communication, conversation or discussion, or evidence, may be used against him in the civil trial, hearing or proceeding in which he is a party. The motion must be made prior to the commencement of the trial, hearing or proceeding unless there was no opportunity to make the motion or the aggrieved person, was not aware of the grounds of the motion. If the motion is granted, the contents of the overheard or recorded communication, conversation or discussion or evidence derived therefrom, may not be received in evidence in any trial, hearing or proceeding.[3]
The Court of Appeals has held 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. It established 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. The Court cautioned that its 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 cannot be so easily circumvented. The procedural vehicles of pretrial hearings must be used to determine the admissibility of any recordings and will result in the suppression of any parent’s recording that a court determines did not meet the narrowly tailored and objective test. In making this admissibility determination, a court should consider the relevant factors, which include, but are not limited to, the parent’s motive or purpose for making the recording, the necessity of the recording to serve the child’s best interests, and the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.[4]
[1] Civil Practice Law and Rules § 4506(a).
[2] The statute provides that the term "aggrieved person" means: (a) A person who was a sender or receiver of a telephonic or telegraphic communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver, by means of any instrument, device or equipment; or (b) A party to a conversation or discussion which was intentionally overheard or recorded, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment; or (c) A person against whom the overhearing or recording described in paragraphs (a) and (b) was directed.
[3] Civil Practice Law and Rules § 4506(3) and (4).
[4] People v Badalamenti, 27 N.Y.3d 423, 54 N.E.3d 32, 34 N.Y.S.3d 360 (2016)
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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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