People v. Badalamenti
NY Slip Op 02556
The highest court in New York has held that parents can legally eavesdrop on their children if they believe that it is in their best interests. This ruling by the New York State Supreme Court established an exception to existing wiretapping without consent laws.
The Court of Appeals had a 4-3 ruling pertained to a cell phone recording of a man threatening the beat a 5-year-old boy of his live-in girlfriend. The call was recorded by the boy’s father. The father had a good faith belief that the wiretap was necessary for the welfare of his son. The father reported that in the recording, the boyfriend stated that he was going to “hit him 14 times for lying” and it would hurt more than his previous beating.
The judge cautioned that this ruling wasn’t now an excuse or way to avoid criminal liability for wiretapping if a parent is acting in bad faith.
The live-in boyfriend AB, was subsequently convicted of assault, unlawful possession of a weapon and child endangerment. According to case testimony, AB was a weightlifter. He had taken to beating the child with his weightlifting belt. His attorney said that the tape was inadmissible evidence from illegal eavesdropping. CPLR section 4506 limits the use of evidence that is obtained illegally by way of Penal Law section 250.05. This is because there is a strong public policy against eavesdropping.
When considering this ruling, the court must decide each case based on the age and maturity of the child involved in the eavesdropping.
A key issue in this case is “whether the child is capable of formulating a well-reasoned judgment of their own.”
In the dissent, Judge Stein said that the issue it raises important policy concerns that are better left for the legislature to decide. Potential implications with the decision include the misuse of this ruling in the realm of custody and divorce matters, criminal proceedings against a child, or other family-related disputes.
In a previous case, a Brooklyn court upheld a mother’s actions where she a put a recording device in her son’s backpack to tape a bus driver, who was suspected of abusing the child. In this instance, the recording was found admissible on the grounds of child endangerment.
New York Penal Law 250.05 states that “a person is guilty of eavesdropping when he lawfully engages in wiretapping, mechanically overhearing a conversation, or assessing of an electronic communication.”
In this case, the father didn’t share the information or call authorities until well after the boyfriend and the mother were arrested months later. The majority ruling does address whether a parent can eavesdrop if the child explicitly refusing while talking to the other parent.
The attorney for AB said that the court made their ruling and reached its decision without the initial threshold determination that the father was wiretapping the conversation because the father was indeed acting in the child’s best interests.
This case could open up a “Pandora’s box.” Although this is a criminal case, it could be used for ill purposes in custody and divorce cases.
In its decision, the court said that the prosecution had demonstrated that the father had acted in good faith and believed that his actions were necessary to protect the welfare of his child. The vicarious exemption applies (Pollock v. Pollock 154 F3d 601), and allowing the recording at trial did not violation CPLR section 4506.
If you have a family law issue, it is important to get prompt advice from a skilled lawyer to ensure that your rights are protected. Contact the Stephen Bilkis and Associates for advice and a free consultation. There are offices in Manhattan, Brooklyn, the Bronx, Staten Island, Queens, Nassau County, Suffolk County and Westchester County to serve you. Call 1-800-NYNYLAW to schedule a free consultation.