People v. Clark, 2006-1338 K CR.
| Court | New York Supreme Court — Appellate Term |
| Citation | 19 Misc.3d 6,2008 NY Slip Op 28009,855 N.Y.S.2d 809 |
| Docket Number | 2006-1338 K CR. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. CONNIE CLARK, Respondent. |
| Decision Date | 11 January 2008 |
v.
CONNIE CLARK, Respondent.
[19 Misc.3d 7]
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Seth M. Lieberman of counsel), for appellant.
Tilem & Campbell, LLP, Larchmont (John Campbell of counsel), for respondent.
MEMORANDUM.
Order reversed on the law, defendant's motion to suppress evidence denied and matter remitted to the court below for all further proceedings.
Defendant was charged with two counts of endangering the welfare of a child (Penal Law § 260.10 [1], [2]). The child is an eight-year-old boy suffering from autism, who does not speak and inflicts bodily harm upon himself. He requires special bus transportation to and from school, and the services of defendant, his personal bus matron. When the child's mother noticed that her son was coming home with bruises and abnormal redness on his body, she put an audio recording device into her son's backpack before she placed him on the school bus on September 30, 2005. Defendant moved to suppress the audio recording of her conversation on the ground that the conversation was recorded without her consent or the consent of any other party present during the conversation, in violation of Penal Law § 250.05, and should be suppressed pursuant to CPLR 4506. The People argued that the mother consented to the recording on behalf of her child, who was present during the conversation. The court below declined to adopt the People's argument and granted defendant's motion to suppress said evidence. The instant appeal by the People ensued.
A person is guilty of the felony offense of eavesdropping when he or she engages in "mechanical overhearing of a conversation" (Penal Law § 250.05). "Mechanical overhearing of a conversation" is defined 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" (Penal Law § 250.00 [2]). CPLR 4506 bars the use of eavesdropping evidence obtained by private individuals in violation of Penal Law § 250.05 (see People v Capolongo, 85 NY2d 151, 158-159 [1995]), as there is a strong public policy of protecting citizens against eavesdropping (see People v Capolongo, 85 NY2d at 160).
The New York eavesdropping statute is similar to the federal wiretap statute in that both statutes require consent from at least one party to the conversation for the recording to be lawful (compare Penal Law § 250.05, with 18 USC § 2511 [2] [d]). In construing the federal wiretap statute (18 USC § 2511), the court in Pollock v Pollock (154 F3d 601, 610 [6th Cir 1998]), held that when a parent or guardian can demonstrate a "good faith, objectively reasonable basis [to] believ[e] ... [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 (see Thompson v Dulaney, 838 F Supp 1535, 1545 [1993]). Various state courts have also adopted "vicarious consent" as an exemption under wiretapping statutes (see D'Onofrio v D'Onofrio, 344 NJ Super 147, 154-156, 780 A2d 593, 596-598 [2001]; State v Diaz, 308 NJ Super 504, 706 A2d 264 [1998] [audio portions of a video recording were held to be admissible in the prosecution of a nanny accused of assaulting and endangering the welfare of an infant child]; Silas v Silas, 680 So 2d 368, 371 [Ala 1996]). We note that such recorded evidence has been admitted at trial for impeachment purposes in...
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People v. Badalamenti, 71
...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 ......
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People v. Badalamenti
...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 ......
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People v. Badalamenti
...Appellate Term, Second Department, also recognized a "vicarious consent" exemption to New York's eavesdropping statute in People v. Clark, 19 Misc.3d 6, 855 N.Y.S.2d 809 (App.Term., 2d & 11th Jud.Dists.), relying on the common-law rule that infants are often deemed incompetent to act on the......
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State v. Whitner, 27142.
...v. Kroh, 152 N.C.App. 347, 567 S.E.2d 760 (2002); State v. Diaz, 308 N.J.Super. 504, 706 A.2d 264 (N.J.Super.A.D.1998); People v. Clark, 19 Misc.3d 6, 855 N.Y.S.2d 809 (N.Y.Sup.Ct.App.Term 2008); Lawrence v. Lawrence, No. E2010–00395COA–R3–CV, 2010 WL 4865516 (Tenn.Ct.App.2010); Alameda v. ......
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People v. Badalamenti
...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 ......
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People v. Badalamenti, No. 71
...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 ......
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People v. Badalamenti
...Appellate Term, Second Department, also recognized a "vicarious consent" exemption to New York's eavesdropping statute in People v. Clark, 19 Misc.3d 6, 855 N.Y.S.2d 809 (App.Term., 2d & 11th Jud.Dists.), relying on the common-law rule that infants are often deemed incompetent to act on the......
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State v. Whitner, No. 27142.
...v. Kroh, 152 N.C.App. 347, 567 S.E.2d 760 (2002); State v. Diaz, 308 N.J.Super. 504, 706 A.2d 264 (N.J.Super.A.D.1998); People v. Clark, 19 Misc.3d 6, 855 N.Y.S.2d 809 (N.Y.Sup.Ct.App.Term 2008); Lawrence v. Lawrence, No. E2010–00395COA–R3–CV, 2010 WL 4865516 (Tenn.Ct.App.2010); Alameda v. ......