People v. Badalamenti

Decision Date05 April 2016
Docket NumberNo. 71,71
Citation34 N.Y.S.3d 360,27 N.Y.3d 423,2016 N.Y. Slip Op. 02556,54 N.E.3d 32
Parties The PEOPLE of the State of New York, Respondent, v. Anthony BADALAMENTI, Appellant.
CourtNew York Court of Appeals Court of Appeals

Marianne Karas, Thornwood, for appellant.

Madeline Singas, District Attorney, Mineola (Jason R. Richards and Tammy J. Smiley of counsel), for respondent.

OPINION OF THE COURT

FAHEY, J.

We hold 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.

Our decision sets out 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.

I.

In 2008, defendant lived with his girlfriend and her five-year-old son on the second floor of a two-family house. The owners lived on the main floor. Through her ceiling, the landlady on several occasions heard defendant screaming at the child, and the child crying and pleading. When the landlady told defendant that it was not acceptable to “beat on children,” he responded by saying, “I can beat the hell out of him if I want if he lies.” This conversation was not reported to any authority.

The boy's father had visitation rights, and in the spring of 2008 he noticed that when it was time for his son to return home after a visit, the child would start crying and refuse to get ready. On May 4, 2008, after a conversation with his son, the father told the mother he would not return the child to her. She contacted the police, who appeared at the father's home and required that he release the child to the mother's custody.

On May 6, 2008, the father tried to reach the mother on her cell phone, using his own cell phone. He called several times without reaching her; the calls went directly to voicemail. Finally, a call went through, but no one said anything to the father. However, the line was open, and the father was able to hear what was occurring in defendant's apartment. Defendant and the child's mother were yelling at the child, who was crying. Defendant threatened to beat him and punch him in the face. The father, using another cell phone, tried to call the landline telephone in the apartment, but no one answered.

At this point, the father decided to record what he was hearing using a voice memo function on his cell phone. On the recording, which was played to the jury at defendant's trial, defendant told the five-year-old boy that he was going to hit him 14 times for lying and that this would hurt more than a previous beating. The father saved the recording on his cell phone. He did not contact the police.

On October 22, 2008, defendant's landlady heard screaming and crying in the apartment above her. The child (now six years old) was begging “Anthony” to stop hurting him. She also heard a slapping sound. On October 31, 2008, the landlady again heard the child screaming for “Anthony” to stop hurting him, and she and her daughter heard what sounded like a strap being used to beat someone. At his wife's insistence, the landlord called the police.

Police officers rang the doorbell of the upstairs apartment, knocked on the door, and called the landline telephone. No one answered. The police broke the door down and arrested defendant and the child's mother. The child was treated at a medical center; he had extensive bruising and swelling on the lower part of his body, including older bruises that were 7 to 10 days old. The child told an emergency room doctor that his mother had hit him, with a belt, as punishment for lying. At the precinct, the mother gave the police consent to retrieve two belts from the apartment.

From November 1, the child lived with his father. The father informed the police of the recording he had saved on his cell phone, and the police preserved it on a compact disc.

II.

Defendant was charged with four counts of assault in the second degree, two counts of criminal possession of a weapon in the fourth degree, and one count of endangering the welfare of a child. In pretrial proceedings, the People sought, over defendant's objection, permission to introduce the father's recording into evidence at trial. Defendant protested that the making of the recording amounted to eavesdropping, prohibited by Penal Law § 250.05, and that the recording was therefore inadmissible pursuant to CPLR 4506(1). The People also put the defense on notice that they would be seeking a charge instructing the jury that defendant had “a duty to care for the child and to prevent harm from happening to [him],” and would be arguing that defendant had violated such a duty. Defendant objected that this would change the theory of the case from what had been presented in the indictment.

The trial court allowed the recording to be admitted into evidence, with respect to the endangering the welfare of a child count, holding that the father's action was not eavesdropping, and that, even if it were, it was justifiable on the basis of the “duty of the father to take some action once he heard [defendant's] conduct.” The court relied on People v. Clark, 19 Misc.3d 6, 855 N.Y.S.2d 809 (App. Term, 2d Dept., 2d & 11th Jud.Dists.2008), lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 (2008), in which the Appellate Term permitted the admission of a recording based on a theory of vicarious consent.

At trial in June 2009, the jury heard testimony from the child (see CPL 60.20 ), the father, the owners of the two-family house, the emergency room doctor, the child's first-grade teacher, and detectives. The child's testimony regarding the events of October 31 was that his mother and defendant took turns beating him with a belt. The landlady recounted how she had heard the child begging “Anthony” to stop hurting him.

The May 6, 2008 recording was played for the jury, with the instruction that the jury could consider it only as evidence concerning the endangering the welfare of a child count. The father testified concerning the circumstances leading to the recording. Asked whether he had been afraid for his son's safety when he was listening to what was occurring in the apartment, he responded that he had not thought that defendant would physically harm his son, but was afraid for the boy to the extent that defendant's “tone was getting louder and louder.” The jury also saw photographs of the child's injuries, and the belts were introduced into evidence.

Defendant testified. He told the jury that he had never struck the child and asserted that the child's mother had carried out the beatings. Defendant insisted that his recorded threats addressed to the child were idle and intended to prevent the child's mother from hitting him. With regard to the events of October 31, defendant testified that the child's mother had spanked the child on her own, that he had not heard the beating or, later, the arrival of the police because he had headphones on, and that his involvement in the incident had been limited to consoling the child and treating his wounds.

Before summations, the prosecution formally requested an accessorial liability charge. Defendant objected that such a charge “reframe[d] the indictment,” altering “the nature and theory of the prosecution's case.” The trial court, however, instructed the jury that

“there are ... circumstances where an individual's criminal liability may be predicated on that individual's failure to act or an omission to act provided that the individual shared the same state of mind as the actor....
[I]n order for you to hold this defendant criminally liable under this definition of accessorial liability, meaning the omission-to-act theory of liability, you must find that the People prove beyond a reasonable doubt that the defendant failed to act or omitted to perform an act that he was legally required to perform because of his parental or parental equivalent relationship with the victim, and that he did so with the state of mind required for the commission of the offense.”

The jury found defendant guilty of all charges, except one assault charge that corresponded to the beating alleged to have occurred on October 22. Upon conviction, the trial court sentenced defendant to an aggregate term of seven years' imprisonment, to be followed by three years' postrelease supervision.

On appeal, defendant argued, as pertinent here, that the recording amounted to eavesdropping in violation of Penal Law § 250.05, because no party to the conversation consented to the recording, so that the evidence was inadmissible under CPLR 4506, and that the charge on accessorial liability was given in error.

The Appellate Division affirmed the trial court's judgment (124 A.D.3d 672, 1 N.Y.S.3d 242 [2d Dept.2015] ). The Court adopted the vicarious consent doctrine, as recognized with respect to the federal wiretap statute by the Sixth Circuit in Pollock v. Pollock, 154 F.3d 601 (6th Cir.1998), and in New York by the Appellate Term in People v. Clark.

“While ... Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, out of concern for the best interests of their minor child, they record that child's conversations. Given the similarity between the federal wiretap statute and New York's eavesdropping statute, and recognizing that the vicarious consent exemption is rooted on a parent's need to act in the best interests of his or her child, we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.
“Here, the People sufficiently demonstrated that the father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of the infant to record the
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