People v. Badalamenti

• Citation: 124 A.D.3d 672,1 N.Y.S.3d 242
• Parties: The PEOPLE, etc., respondent, v. Anthony BADALAMENTI, appellant.
• Decision Date: 14 January 2015
• Court: New York Supreme Court Appellate Division

124 A.D.3d 672
1 N.Y.S.3d 242

The PEOPLE, etc., respondent,
v.
Anthony BADALAMENTI, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 14, 2015.

1 N.Y.S.3d 243

Marianne Karas, Thornwood, N.Y., for appellant, and appellant pro se.

Madeline Singas, Acting District Attorney, Mineola, N.Y. (Robert A. Schwartz and Jason R. Richards of counsel), for respondent.

RANDALL T. ENG, P.J., MARK C. DILLON, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

124 A.D.3d 672

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Peck, J.), rendered November 4, 2009, convicting him of assault in the second degree (three counts), criminal possession of a weapon in the fourth degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence supporting his convictions of assault in the second degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of three counts of assault in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant contends that the trial court erroneously admitted into evidence a recording, made by the father of the infant victim, of a conversation between the defendant

1 N.Y.S.3d 244

and the child. On May 6, 2008, the infant's father called the infant's mother's cell phone, and the mother pressed the answer button,

124 A.D.3d 673

but did not speak. While the father was on the line, but not engaged in any telephone conversation, he overheard the defendant berating and threatening the infant, and the infant responding. The father recorded the conversation between the defendant and the infant. The defendant contends that this recording violated Penal Law § 250.05 because neither the defendant nor the infant consented to the recording.

Penal Law § 250.05 provides, in pertinent part, that "[a] person is guilty of eavesdropping when he [or she] unlawfully engages in ... mechanical overhearing of a conversation." Penal Law § 250.00(2) defines "mechanical overhearing of a conversation" as "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." CPLR 4506 bars the use of eavesdropping evidence obtained by private individuals in violation of Penal Law § 250.05 (see People v. Capolongo, 85 N.Y.2d 151, 158–159, 623 N.Y.S.2d 778, 647 N.E.2d 1286 ), as there is a strong public policy of protecting citizens against eavesdropping ( id. at 160, 623 N.Y.S.2d 778, 647 N.E.2d 1286 ).

However, in Pollock v. Pollock, 154 F.3d 601 (6th Cir.1998), the United States Court of Appeals for the Sixth Circuit recognized a "vicarious consent" exemption to the federal wiretap statute ( 18 U.S.C. § 2511 ), and held 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 ( Pollock v. Pollock, 154 F.3d at 610...