Connin v. Connin

• Decision Date: 04 December 1976
• Citation: 392 N.Y.S.2d 530,89 Misc.2d 548
• Court: New York Supreme Court
• Parties: Shera CONNIN, Plaintiff, v. John CONNIN, Defendant.

Page 530

392 N.Y.S.2d 530

89 Misc.2d 548

Shera CONNIN, Plaintiff, v. John CONNIN, Defendant.

Supreme Court, Monroe County.

Dec. 4, 1976.

Gerald Manioci, Rochester, for plaintiff.

Harter, Secrest & Emery, Rochester (James C. Moore, Rochester, of counsel), for defendant.

MEMORANDUM

JAMES H. BOOMER, Justice.

Section 250.05 of the Penal Law makes it illegal to intentionally overhear or record a telephone conversation without the consent of either the sender or receiver. Is it a violation of this section when a husband, without his wife's consent, taps the phone in the marital residence and records her conversations with other men for the purpose of obtaining evidence against her in a divorce action?

Federal cases, under a statute similar in language to our state statute, are conflicting. The United States Court of Appeals Fifth Circuit, has held that Congress must not have intended to encompass in the broad prohibition of the statute personal acts of spouses within their marital home (Simpson v. Simpson, 490 F.2d 803). This case was followed by the United States District Court for the Southern District of New York in London v. London, 420 F.Supp. 944, 1976.

The Sixth Circuit has held to the contrary (United States v. Jones, 542 F.2d 661, 1976), stating that the statute was clear on its face and that its blanket prohibition did not exclude 'interspousal wiretaps.' 'The natural presumption when construing a statute is that Congress meant what it said.' (United States v. Jones, supra, at p. 667.)

Apparently the only decision in point construing our state statute is Plotkin v. Rabinowitz, 54 Misc.2d 550, 283 N.Y.S.2d 156. There the Supreme Court, Queens County, held that the present eavesdropping statute overruled the 1950 decision of People v. Appelbaum, 277 App.Div. 43, 97 N.Y.S.2d 807, affd. 301 N.Y. 738, 95 N.E.2d 410. In the Appelbaum case the Appellate Division stated that 'the protection of a right of privacy may be subordinated where the circumstances disclose the existence of a paramount right and the use of a telephone line is with the permission of and subordinate to the possessor of that paramount right. Such a paramount right is possessed by the subscriber to a telephone line. When such a subscriber consents to the use of his line, by his employee or by a member of his household, or by his wife, there is a condition implied that the telephone will not be used to the detriment of the subscriber's business, household or marital status.' Apparently to overrule this decision, the new eavesdropping statute (Penal Law § 738) enacted in 1957 (Penal Law, § 738; L.1957, Ch. 881), made it unlawful to wiretap without the consent of the sender or the receiver....