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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 71
The People &c.,
            Respondent,
        v.
Anthony Badalamenti,
            Appellant.




             Marianne Karas, for appellant.
             Jason R. Richards, for respondent.




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

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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 cellphone, using his own cellphone.   He called several times
without reaching her; the calls went directly to voicemail.


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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 cellphone, 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 cellphone.     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 cellphone.      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


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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
seven to ten 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
cellphone, 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


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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 [App Term, 2d Dept, 2d & 11th Jud Dists 2008], lv
denied 10 NY3d 861 [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


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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

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          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 AD3d 672 [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 F3d 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

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          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 conversation, such that he could
          consent to the recording on the infant's
          behalf. Accordingly, the vicarious consent
          exemption applies, and admission of the
          subject recording was not barred by CPLR
          4506." (124 AD3d at 674 [internal quotation
          marks and citations omitted].)
          With respect to the jury charge, the Appellate Division
held that "under no rational view of the evidence could the jury
have convicted the defendant based upon any uncharged theory," so
that "the error concerning the charge was harmless" (id. at 675).
          A Judge of this Court granted defendant leave to appeal
(25 NY3d 949 [2015]).   We now affirm.
                               III.
          Generally, in New York,
          "[t]he contents of any overheard or recorded
          communication, conversation or discussion, or
          evidence derived therefrom, which has been
          obtained by conduct constituting the crime of
          eavesdropping, as defined by section 250.05
          of the penal law, may not be received in
          evidence in any trial, hearing or proceeding
          before any court or grand jury" (CPLR 4506
          [1]).
          Penal Law § 250.05, in turn, provides that "[a] person
is guilty of eavesdropping when he unlawfully engages in


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wiretapping, mechanical overhearing of a conversation, or
intercepting or accessing of an electronic communication."
Eavesdropping is a class E felony.
          Wiretapping is defined as "the intentional overhearing
or recording of a telephonic or telegraphic communication by a
person other than a sender or receiver thereof, without the
consent of either the sender or receiver, by means of any
instrument, device or equipment" (Penal Law § 250.00 [1]).
" 'Mechanical overhearing of a conversation' means 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]).1
          The father's actions on his cellphone did not
constitute "wiretapping" because, with respect to the telephonic
communication he recorded, he was "a sender or receiver thereof"
(Penal Law § 250.00 [1]).   Defendant argues, however, that the
father's actions amounted to the crime of "mechanical overhearing
of a conversation" (Penal Law §§ 250.05, 250.00 [2]), and that
the recording was consequently inadmissible.   Defendant points
out that the father deliberately used a device to record a
conversation between defendant, the child, and his mother,


     1
          "[I]ntercepting or accessing of an electronic
communication" is defined to exclude transfer of "any telephonic
or telegraphic communication" (Penal Law § 250.00 [5] [a]; see
Penal Law § 250.00 [6]).

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without obtaining the consent of any of those three people, and
without being present at, or a party to, the conversation.       We
agree that the father's actions matched the statutory elements.
Certainly, mechanical overhearing of a conversation or "bugging"
has been interpreted to include the interception of face-to-face
communications by means of a recording device on a telephone (see
People v Basilicato, 64 NY2d 103, 114 [1984] [holding that a
recording was a mechanical overhearing of a conversation when a
device designed for authorized wiretapping enabled tape recording
of a face-to-face conversation because the receiver was left off
the hook]; see also People v Basilicato, 98 AD2d 124, 126 [3d
Dept 1983] [noting that the recording device was installed "in
the telephone itself"]).   This, however, does not end our
analysis.
            The analytical core of this case is consent.   The
father did not ask for or obtain the consent of any party to the
conversation.   Nor is there evidence in the record that the
mother intentionally manipulated her cellphone so that the
father's call would go through.   We conclude, however, that the
father gave consent to the recording on behalf of his child.
            The principle of vicarious consent that we adopt
originates in federal case law.   The federal wiretapping law,
like the New York statutes we interpret here, contains an
exception for the interception of a communication with the
consent of one party.   "It shall not be unlawful under this


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chapter . . . for a person not acting under color of law to
intercept a wire, oral, or electronic communication where such
person is a party to the communication or where one of the
parties to the communication has given prior consent to such
interception unless such communication is intercepted for the
purpose of committing any criminal or tortious act in violation
of the Constitution or laws of the United States or of any State"
(18 USC § 2511 [2] [d] [emphasis added]).
           In Thompson v Dulaney (838 F Supp 1535 [D Utah 1993]),
in the context of a custody hearing, the United States District
Court for the District of Utah held that the parent or guardian
of minor children can give vicarious consent, on behalf of the
children, to the recording of conversations to which the children
are a party, on the ground that "as long as the guardian has a
good faith basis that is objectively reasonable for believing
that it is necessary to consent on behalf of her minor children
to the taping of the phone conversations, vicarious consent will
be permissible in order for the guardian to fulfill her statutory
mandate to act in the best interests of the children" (id. at
1544).   The children in Thompson were three and five years old;
the conversations were with their father.
           In 1998, the Sixth Circuit adopted the rationale of
Thompson in an influential decision, Pollock v Pollock (154 F3d
601 [6th Cir 1998], reh en banc denied, 1998 US App LEXIS 29672
[6th Cir 1998], reh denied, 1998 US App LEXIS 29673 [6th Cir


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1998]).   In Pollock, during a custody dispute, a mother placed a
device on a telephone in her home in order to record her 14-year-
old daughter's conversations with her stepmother.   The Sixth
Circuit, emphasizing the elements of parental good faith and best
interests of the child, held that "as long as the guardian has a
good faith, objectively reasonable basis for believing that it is
necessary and in the best interest of the child to consent on
behalf of his or her minor child to the taping of telephone
conversations, the guardian may vicariously consent on behalf of
the child to the recording" (Pollock, 154 F3d at 610).2
           The Sixth Circuit noted that the vicarious consent
"doctrine should not be interpreted as permitting parents to tape



     2
          Subsequently, the Pollock doctrine has been adopted by
state courts throughout the United States, including high courts
interpreting state statutes (see Griffin v Griffin, 2014 ME 70,
92 A3d 1144, 1150-1153 [2014]; Commonwealth v F.W., 465 Mass 1,
6-14, 986 NE2d 868, 871-877 [2013]; State v Whitner, 399 SC 547,
552-556, 732 SE2d 861, 863-865 [2012]; State v Spencer, 737 NW2d
124, 130-134 [Iowa 2007]; Alameda v State, 235 SW3d 218, 222-223
[Tex Crim App 2007]). Massachusetts has extended the doctrine
"to allow a nonparent, and specifically, the adult half-sister of
the victim, to vicariously consent to the oral communications of
her half-sister" (F.W., 986 NE2d at 875).
     State high courts declined to adopt a vicarious consent
doctrine in State v Christensen (153 Wash2d 186, 193-194, 102 P3d
789, 792 [2004] [interpreting state statute with all-party
consent, as opposed to one-party consent, requirement]) and,
before Pollock was decided, in W. Va. Dep't of Health & Human
Res. ex rel. Wright v David L. (192 WVa 663, 670-671, 453 SE2d
646, 653-654 [W Va 1994]; see also State v Williams, 215 W Va
201, 207, 599 SE2d 624, 630 [2004] [rejecting defendant's
argument that a custodial parent of a minor child must give
consent on the child's behalf to the interception of a
communication between that child and a third party]).

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any conversation involving their child simply by invoking the
magic words: 'I was doing it in his/her best interest,' " but
insisted that "there are situations, such as verbal, emotional,
or sexual abuse by the other parent, that make such a doctrine
necessary to protect the child from harm" (Pollock, 154 F3d at
610).   The Pollock court considered the motive or purpose of the
guardian or parent in recording the conversation to be a
significant factor in determining whether he or she could consent
on behalf of his or her minor child.   Notably, in Pollock, the
Sixth Circuit reversed the lower court's grant of summary
judgment to the mother and remanded, because it found that
"questions of material fact" existed regarding the mother's
"motivation in taping the conversations" (Pollock, 154 F3d at
612).
           In New York, the Appellate Term adopted Pollock's
vicarious consent doctrine in People v Clark (19 Misc 3d 6).     In
that case, the mother of an eight-year-old boy with autism, who
had noticed that her son was coming home from school with
bruises, placed a recording device in her son's backpack, and
recorded evidence of a "conversation" at which the boy was
present, inculpating his personal bus matron.   The bus matron
moved to suppress the recording on the ground that it had been
recorded without her consent or the consent of any other party
present, in violation of Penal Law § 250.05.    The Appellate Term
adopted Pollock and held that the mother consented to the


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recording on behalf of her child, "since she demonstrated a good
faith, objectively reasonable basis to believe that it was
necessary for the welfare of her son to make said recording"
(Clark, 19 Misc 3d at 9).    The Appellate Term "stress[ed] that
[its] decision . . . should not be interpreted as holding that a
minor alone can never provide the requisite consent to record a
conversation at which he or she may be present or as permitting
parents to tape any conversation involving their child" (Clark,
19 Misc 3d at 9-10).3
          This Court agrees with the approach taken by the Sixth
Circuit in Pollock, and by the Appellate Term in Clark, as
applied below.    There is no basis in legislative history or
precedent for concluding that the New York Legislature intended
to subject a parent or guardian to criminal penalties for the act
of recording his or her minor child's conversation out of a
genuine concern for the child's best interests.   By contrast, the
vicarious consent doctrine recognizes the long-established
principle that the law protects the right of a parent or guardian
to take actions he or she considers to be in his or her child's
best interests.   Yet it also recognizes important constraints on
that right, by requiring that the parent or guardian believe in
good faith that it is necessary for the best interests of the


     3
          One Justice dissented on the ground that "[n]othing in
the statutory language or legislative history makes any provision
for such consent" (Clark, 19 Misc 3d at 11 [Weston Patterson,
J.P., dissenting]).

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                                  - 15 -                         No. 71

child to make the recording, and that this belief be objectively
reasonable.
               Defendant contends that Pollock is distinguishable
because in that case the parent "recorded her child while that
child was at her home," whereas here the father recorded
conversations involving the child and his mother in the mother's
home.       We conclude, however, that the location of the child is
inapposite, so long as the child was lawfully present at the
location of the conversation.      The interests of a child who is
being assaulted or abused are served by having events recorded,
for use by police and prosecutors, whether the crimes occur in
the home of the person making the recording or somewhere else.
               In light of the persuasive precedent from other
jurisdictions and the reasoning set out above, we hold that if a
parent or guardian has a good faith, objectively reasonable basis
to believe that it is necessary, in order to serve the best
interests of his or her minor4 child, to create an audio or video
recording of a conversation to which the child is a party, the
parent or guardian may vicariously consent on behalf of the child
to the recording.
                                   IV.
               Some criticisms of the vicarious consent doctrine have
emerged in the legal literature; it has been suggested


        4
          A minor is "a person under the age of eighteen years"
(Domestic Relations Law § 2).

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             "that the doctrine (1) is subject to misuse
             and abuse by scheming parents; (2) allows for
             an invasion of the child's privacy; (3) fails
             to recognize the child's right to make his or
             her own choices; and (4) will result in
             interfamily discord and resentment when a
             child finds out that his or her parents have
             been secretly recording private telephone
             conversations" (Daniel R. Dinger, Should
             Parents Be Allowed to Record a Child's
             Telephone Conversations When They Believe the
             Child Is in Danger?: An Examination of the
             Federal Wiretap Statute and the Doctrine of
             Vicarious Consent in the Context of a
             Criminal Prosecution, 28 Seattle U L Rev 955,
             989 [2005] [summarizing criticisms before
             concluding that the doctrine is viable]).
             We believe that the objections, which are echoed by the
dissent, are misplaced.    Our discussion begins with the first
criticism.
             In Pollock, while the mother insisted that she had
acted out of concern for her daughter's best interests, the
father claimed that her real motive was retaliation for previous
instances of similar recording by him, together with a desire to
hear her daughter's conversations with her lawyer.    The Sixth
Circuit, as we noted, remanded.    A parent or guardian who is
acting in bad faith or is merely curious about his or her child's
conversations cannot give lawful vicarious consent to their
recording.    If it is not objectively reasonable to believe that a
recording is necessary to serve the child's best interests, then
the recording may constitute the crime of eavesdropping as
defined in Penal Law § 250.05.    For these reasons, the vicarious
consent doctrine, properly applied, does not lend itself to


                                - 16 -
                                - 17 -                       No. 71

misuse and abuse by scheming parents.
          The second criticism may be summarized as the concern
that "parents who surreptitiously intercept telephone
conversations will become privy to anything discussed in those
conversations . . . [and] may learn more about the child than
just what problems the child is experiencing or what dangerous
situations the child might be in, thus going beyond the scope or
intent of the vicarious consent doctrine" (Dinger at 992).   We
accept that the doctrine may have such consequences for a child's
privacy, but we believe the benefits of serving a child's best
interests by necessary means outweigh the detriment.    We also
note that a trial court that admits such a recording into
evidence can and should consider all objections to the relevance
of portions of the recording.    It should, where possible, do so
before a recording is played to the jury, so that parts that have
no relevance do not become public by inclusion in a trial.   In
our view, the careful application of the vicarious consent
doctrine by trial courts with a view to the exclusion of
irrelevant evidence will address the second criticism.
          The third criticism is in a sense fundamental, but it
lacks merit.   The concern relates to the autonomy of the child.
"Traditionally at common law, and still today, unemancipated
minors lack some of the most fundamental rights of
self-determination . . .   They are subject, even as to their
physical freedom, to the control of their parents or guardians"


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                              - 18 -                         No. 71

(Vernonia Sch. Dist. 47J v Acton, 515 US 646, 654 [1995]).     The
reason is clear.   "[T]he States validly may limit the freedom of
children to choose for themselves in the making of important,
affirmative choices with potentially serious consequences . . .
[because] during the formative years of childhood and
adolescence, minors often lack the experience, perspective, and
judgment to recognize and avoid choices that could be detrimental
to them" (Bellotti v Baird, 443 US 622, 635 [1979], reh denied
444 US 887 [1979]).   Nevertheless, we do not discount the fact
that a child’s autonomy grows with age.   In deciding whether a
parent or guardian had a good faith belief that a recording was
necessary to serve the best interests of the child and that this
belief was objectively reasonable, courts must consider the age
and maturity of the child.   A significant factor in assessing
whether a parent or guardian believed in good faith that it was
necessary to make a recording without a child’s express consent,
in order to serve the child’s best interests, is whether the
child is capable of formulating well-reasoned judgments, of his
or her own, regarding best interests.   The same is true of the
separate assessment of whether the parent’s or guardian’s belief
is reasonable.   In general, the older the child, the more this
consideration will be an important factor in determining parental
good faith and reasonableness.
          Finally, the fourth concern, like the second, reflects
a side-effect of the doctrine that is justified by its goal of


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serving a child's best interests.    It may be alleviated by an
effort on the part of the trial court to ensure that private
conversations are admissible only insofar as relevant.
                                V.
          Applying the vicarious consent doctrine to the present
case, the record supports the conclusion of the courts below that
the People have sufficiently demonstrated that the father had a
good faith, objectively reasonable basis to believe that it was
necessary for the welfare of his son to record the violent
conversation he found himself listening to.    The father testified
that he was concerned for his son's safety because of the volume
and tone of defendant's threats.     Although other portions of the
father's testimony reveal that he may have been in doubt about
whether physical harm would ensue, it does not follow that he had
no good faith reason to believe that it was necessary to record
the conversation.   Furthermore, the evidence that the child had
previously expressed fear of returning home adds support to the
conclusion that the father had a good faith basis, despite his
delay in providing the recording to the police.    While defendant
argues that the father should have contacted the police earlier,
his failure to report what he had heard immediately does not
diminish the evidence of good faith.
          Moreover, the father's basis is objectively reasonable.
The father had heard defendant and the child's mother yelling at
the five-year-old child, and defendant threatening to beat him.


                              - 19 -
                                - 20 -                        No. 71

Furthermore, he could not get through to the apartment on the
landline phone.    It was reasonable for the father to conclude
that making the recording was necessary to serve the child's best
interests.    Additionally, the recording, which captures a five-
year-old crying while defendant is threatening to hit him 14
times and referring to previous beatings, speaks volumes.    The
contents of the recording demonstrate that there was an
objectively reasonable basis for the father to believe that
recording what he was hearing was necessary to serve his son's
best interests.
                                  VI.
             Our holding should not be interpreted as a vehicle to
attempt to avoid criminal liability for the crime of
eavesdropping when a parent acts in bad faith and lacks an
objectively reasonable belief that a recording is necessary in
order to serve the best interests of his or her minor child.
Penal Law § 250.05 and CPLR 4506 cannot be so easily
circumvented.    To be sure, the procedural vehicles of pretrial
hearings in CPLR 4506 and CPL 710.70 must be used to determine
the admissibility of any recordings and will result in the
suppression of any parent's recording that a court determines did
not meet our narrowly tailored and objective test.    In making
this admissibility determination, a court should consider the
relevant factors already discussed, which include, but are not
limited to, the parent's motive or purpose for making the


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                              - 21 -                          No. 71

recording, the necessity of the recording to serve the child's
best interests, and the child's age, maturity, and ability to
formulate well-reasoned judgments of his or her own regarding
best interests.
                               VII.
          With respect to defendant's challenge to the jury
charge on accessorial liability, the People now concede that the
trial court improperly instructed the jury on a theory of
criminal liability not alleged in the indictment, namely the
uncharged theory that defendant committed assault by failing to
protect the child from an assault by his mother.   However, the
People correctly observe that a "variance between the [t]rial
[j]udge's charge to the jury, on the one hand, and the
allegations of an indictment, on the other, may be considered
harmless where there is no possibility that the jury premised its
determination of guilt upon a theory not contained in the
indictment" (People v Udzinski, 146 AD2d 245, 261 [1989], lv
denied 74 NY2d 853 [1989]).   The principle emerges from People v
Grega (72 NY2d 489 [1988]), where this Court held that a
defendant was not deprived of the right to be tried only for
crimes with which the grand jury had charged him, because there
was no "evidence from which the trial jury could have concluded
that defendant accomplished his crimes" in the manner described
by an uncharged theory of criminal liability and "the jury's
guilty verdict could only have been based on the evidence of [the


                              - 21 -
                              - 22 -                           No. 71

crime] as charged in the indictment" (id. at 496).   Notably, a
reviewing court may not apply such a harmless error analysis to
an improper jury charge if "it is impossible . . . to determine
whether the guilty verdict was founded on an illegal theory," for
that would "in effect, assume the jury's fact-finding function by
concluding that the jury must have reached its result on some
alternative legal ground" (People v Martinez, 83 NY2d 26, 35
[1993], cert denied 511 US 137 [1994]).
           Here, the trial court's jury charge error is harmless.
There is no possibility that the jury based its verdict with
respect to the assault charges on the uncharged theory that
defendant stood by and failed to assist the child, while his
mother assaulted him, yet at the same time the defendant
possessed the state of mind required for the commission of
assault.   To have concluded that defendant stood by and did
nothing while the child's mother beat him, the jury would have
had to discredit the testimony of the child that his mother and
defendant took turns beating him and the testimony of the
landlady that she heard the child addressing "Anthony" and
entreating him to stop hurting him, and instead credit
defendant's own testimony that he had never spanked or beaten the
child.   However, to the extent defendant's testimony suggested
that he did nothing while the child's mother spanked him, his
testimony also told the jury that he did nothing because he was
unaware of the beating until after it occurred.   That would have


                              - 22 -
                              - 23 -                        No. 71

been inconsistent with sharing the state of mind required for
assault.   As the People point out, "[n]either side presented any
evidence of a 'middle ground,' where defendant did not
participate in or assist, but was aware of and failed to prevent,
the [October 31] beating, and did so while sharing [the mother]'s
intent to assault."
                               VIII.
           Defendant challenges the prosecutor's opening
statement, but his contentions are unpreserved.   Defendant's
remaining arguments lack merit.
           Accordingly, the order of the Appellate Division should
be affirmed.




                              - 23 -
People v Anthony Badalamenti
No. 71




STEIN, J.(dissenting):
            The majority holds, in the face of statutes that are
silent on the subject, that a parent may vicariously consent for
a minor child for the purposes of satisfying the one-party
consent requirement contained in New York's eavesdropping
statutes.   In so holding, the majority disregards settled
principles of statutory interpretation and encroaches on the
province of the legislature.   I, therefore, dissent.
                                 I.
            Defendant was charged with criminal possession of a
weapon and assaulting his girlfriend's six-year-old child, either
individually or by aiding and abetting the child's mother, after
the child was badly beaten with a belt in late October 2008.
Defendant was also charged with endangering the welfare of the
child by hitting the child with his hands and a belt between the
months of January and October 2008.     At trial, the People sought
to introduce into evidence a recording made by the child's
noncustodial father of communications that he overheard through
his cell phone after the mother inadvertently answered her cell
phone while in her apartment with defendant and the child.
            More specifically, the father called the mother's cell


                                - 1 -
                               - 2 -                           No. 71

phone several times in succession one day in May 2008, but the
mother evidently pressed the "ignore" button repeatedly to send
the calls directly to her voicemail.   On the father's fifth or
sixth call, the mother's phone was answered, but no one spoke to
him from the other end of the line or otherwise acknowledged the
call.   Listening through the open line, the father overheard
defendant scolding the child, intermittently yelling at the child
for supposedly misbehaving, and making reference to the child
previously having been hit, as well as threatening to hit the
child later that day.   After listening for a few minutes --
apparently with the understanding that none of the parties at the
mother's apartment were aware that he could overhear or intended
for him to hear their communications -- the father began
recording the conversation and continued to do so for
approximately 20 minutes.   During that time, the father also
called the mother's land-line phone from his work phone, which
calls went unanswered, but he made no efforts to contact the
authorities.   The father turned the recording over to the police
more than five months later, only after defendant and the child's
mother were arrested for physically assaulting the child.   The
question before us on this appeal is whether the trial court
erred by permitting the People to introduce at trial this highly
prejudicial recording, over defendant's objection, in connection
with the endangerment count.




                               - 2 -
                              - 3 -                             No. 71

                               II.
          Pursuant to Penal Law § 250.05, "[a] person is guilty
of eavesdropping when he [or she] unlawfully[1] engages in
wiretapping, mechanical overhearing of a conversation, or
intercepting or accessing of an electronic communication."
"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] [emphasis added]).
          In order to deter criminal eavesdropping, CPLR 4506
provides that "[t]he contents of any overheard or recorded
communication, conversation or discussion, or evidence derived
therefrom, which has been obtained by conduct constituting the
crime of eavesdropping, as defined by [Penal Law § 250.05], may
not be received in evidence in any trial" or other proceeding,
except against the individual alleged to have committed the crime
of eavesdropping (CPLR 4506 [1]).    "This State exclusionary
provision . . . applies . . . to [eavesdropping] evidence
gathered by any individual, and serves to deter both unlawful
governmental conduct and that of private individuals" (People v
Capolongo, 85 NY2d 151, 158-159 [1995] [emphasis added]).       The


     1
        The term "unlawfully," as used in the eavesdropping
statute, means that the wiretapping or mechanical overhearing is
"not specifically authorized" by CPL articles 700 and 705, which
govern the issuance of eavesdropping and video surveillance
warrants and orders authorizing the use of a pen register or a
trap and trace device (Penal Law § 250.00 [8]).

                              - 3 -
                               - 4 -                          No. 71

rationale underlying the exclusionary rule is this State's
"strong public policy of protecting citizens against the
insidiousness of electronic surveillance by both governmental
agents and private individuals" (id. at 160; see People v Kramer,
92 NY2d 529, 538 [1998]).   "New York State has, therefore,
responded to the problems raised by electronic surveillance with
greater protection than is conferred under Federal law, and
continues to assert this strong public policy, through evolving
legislation, as technology advances" (Capolongo, 85 NY2d at 160
[emphasis added]).
          The majority concludes that the father's actions in
overhearing and recording with his cell phone the oral
communications taking place at the mother's apartment constituted
mechanical overhearing within the meaning of the statute.     I
agree,2 although I limit my agreement in this regard to the
unique facts of this case, specifically, that: (1) the father's
intent to overhear the conversation was not challenged, and the
overhearing was undertaken with the understanding that the mother
was oblivious to her mistake; and (2) it is not disputed that the
mother, defendant, and the child were unaware of the open phone


     2
        While the majority focuses on the recording, I note that
Penal Law §§ 250.00 and 250.05 criminalize both the mechanical
"overhearing" and the mechanical "recording" of conversations to
which an individual is not a party without the requisite consent.
Thus, the father's conduct of maintaining the open phone line and
listening to the communications is, itself, a violation of the
statutes and no distinction need be drawn here between that act
and the act of recording.

                               - 4 -
                              - 5 -                           No. 71

line and, therefore, cannot be presumed to have consented (see
generally People v Basilicato, 64 NY2d 103, 115 [1984]).     I make
no determination as to whether the elements of the statute would
be satisfied in another case where it is disputed or not readily
discernible whether the answering or placing of a phone call is
intentional or inadvertent -- such as where the caller or
recipient may suspect that the person on the other line wants
them to overhear (for example, to obtain help).
          In any event, I cannot agree that the recording here
was admissible based on the vicarious consent doctrine.    While
the majority's purpose in adopting this theory is a laudable one,
I find no basis to conclude that the plain language of the
eavesdropping statute, as enacted by the legislature, permits a
parent to surreptitiously mechanically overhear or record
conversations of his or her minor child -- to which the parent is
not a party -- simply by virtue of the parent-child relationship.
In my view, the question of whether a parent may permissibly
vicariously consent on behalf of a child for purposes of the
eavesdropping laws is one for the legislature, and this Court
usurps the legislative prerogative by reading such a doctrine
into the Penal Law.
                              III.
          On this appeal, the People argue that we should adopt a
"vicarious consent exemption" to Penal Law §§ 250.00 and 250.05,
and they urge us to apply that exemption to the facts of this


                              - 5 -
                                 - 6 -                          No. 71

case.   The majority adopts the approach advanced by the People
and holds that a parent can vicariously consent to mechanical
overhearing on the child's behalf when the parent has a good-
faith, objectively reasonable basis to believe that undertaking
the otherwise prohibited eavesdropping is in the child's best
interests.
             The majority asserts that "[t]he analytical core of
this case is consent" (majority op., at 10).    Rather, the true
"analytical core of this case" is the application of the precepts
of statutory interpretation and judicial deference to legislative
concerns that is absent from the majority's decision (majority
op., at 10).    Our "primary consideration" in matters of statutory
interpretation "is to 'ascertain and give effect to the intention
of the [l]egislature'" (Riley v County of Broome, 95 NY2d 455,
463 [2000], quoting McKinney's Cons Laws of NY, Book 1, Statutes
§ 92 [a], at 177).    Where statutory language is unambiguous, "'it
should be construed so as to give effect to the plain meaning of
the words used'" (People v Williams, 19 NY3d 100, 103 [2012],
quoting People v Finnegan, 85 NY2d 53, 58 [1995], cert denied 516
US 919 [1995]).    "A court cannot by implication supply in a
statute a provision which it is reasonable to suppose the
[l]egislature intended intentionally to omit; and the failure of
the [l]egislature to include a matter within the scope of an act
may be construed as an indication that its exclusion was
intended" (Statutes Law § 74; see Finnegan, 85 NY2d at 58; People


                                 - 6 -
                               - 7 -                          No. 71

v Tychanski, 78 NY2d 909, 911 [1991]).   "Equally settled is the
principle that courts are not to legislate under the guise of
interpretation" or by reading into a statute an exception that
does not exist (Finnegan, 85 NY2d at 58).
          The plain language of Penal Law § 250.00 (2) states
that "'[m]echanical overhearing of a conversation' means 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."   Nothing in this definition indicates that the
legislature intended to exempt parents from the prohibition
against mechanical overhearing conversations between their
children and third parties.   The absence of such language is even
more striking when we consider that the legislature could not
have simply ignored the potential implications of the
eavesdropping laws in the familial context, given that, "[i]n the
private sector, the most prevalent form of illegal eavesdropping
occurs in the context of marital or family relations," including
custody disputes and instances of parents intercepting their
children's communications (National Comm'n For The Review of Fed.
& State Laws Relating to Wiretapping and Elec. Surveillance,
Electronic Surveillance 161 [1976]).   The legislature's failure
to expressly provide any exemption for parents, or to set forth
an expanded definition of "consent" in the statute to include
vicarious consent by parents, is a strong indicator that no such


                               - 7 -
                               - 8 -                          No. 71

special provisions -- however beneficial and practical we might
consider them to be -- were intended (Penal Law § 250.00 [2]; see
Finnegan, 85 NY2d at 58; Tychanski, 78 NY2d at 911).
          While the majority characterizes its holding as a
statutory interpretation of the undefined term "consent"
(majority op., at 1), it exceeds the legitimate bounds of
statutory construction by going far beyond the plain language of
the statutory term "consent" to devise a test by which a parent
sometimes can vicariously consent on their child's behalf and at
other times cannot.   Even assuming, as the majority does, that
the legislature intended to permit parents to vicariously consent
to eavesdropping for the purpose of protecting their children,
there is nothing in the statute or its legislative history to
suggest that the legislature intended to limit that right to
particular types of situations.   The majority's efforts to
confine vicarious consent to apply only within specifically
crafted parameters demonstrates the inconsistencies between the
doctrine and the statutory language, and negates any attempt to
reconcile the majority's analysis with our well-settled
principles of statutory interpretation.
          The majority concludes that the legislature could not
have intended to abolish "the long-established principle that the
law protects the right of a parent or guardian to take actions he
or she considers to be in his or her child's best interests"
(majority op., at 14).   While I do not dispute that parents have,


                               - 8 -
                               - 9 -                          No. 71

and should have, the right to exercise consent on behalf of their
children in many situations, the majority supplies no analogous
contexts in which a parent's ability to do so is based on a
judicially-constructed test evaluating the parent's reasons for
so consenting.   I find it unlikely that the legislature would
endorse such a standard, rather than providing parents with a
clear-cut rule by which to measure whether their actions are
lawful.
          It is true, as the People and the majority point out,
that other courts have adopted vicarious consent exemptions to
federal and state eavesdropping laws by employing the test
adopted by the majority today (see e.g. Griffin v Griffin, 92 A3d
1144, 2014 ME 70 [2014]; Commonwealth v F.W., 465 Mass 1, 986
NE2d 868 [2013]; Pollock v Pollock, 154 F3d 601 [6th Cir 1998];
Thompson v Dulaney, 838 F Supp 1535 [Utah D Ct 1993]; but see
State v Williams, 215 W Va 201, 207, 599 SE2d 624, 630 [2004]
["(t)he statute simply contains no vicarious consent exception
for minors, and we refuse to find that one exists without a
statutory basis to do so"]).   However, regardless of whether
courts of other jurisdictions have seen fit to judicially engraft
the vicarious consent doctrine into their statutes, we are bound
by the proviso that "a statute 'must be read and given effect as
it is written by the [l]egislature, not as the court may think it
should or would have been written if the [l]egislature had
envisaged all the problems and complications which might arise'"


                               - 9 -
                              - 10 -                           No. 71

(Tychanski, 78 NY2d at 911, quoting Parochial Bus Sys. v Board of
Educ. v City of N.Y., 60 NY2d 539, 548-549 [1983]).
           Indeed, prior to the Appellate Term's decision in
People v Clark (19 Misc 3d 6 [App Term, 2d Dept, 2d & 11th Jud
Dists 2008], lv denied 10 NY3d 861 [2008]), relied on by the
majority, it was long understood that the statutory language of
Penal Law §§ 250.00 and 250.05 did not support use of the
vicarious consent doctrine in New York in the eavesdropping
context.   For example, in Matter of Berk v Berk, the Second
Department held that tape recordings made by a father of a
mother's conversation with the child must be suppressed as
illegally obtained, noting that "[a]mple evidence is available to
evaluate the best interests of the children without resorting to
illegally obtained recordings of conversations between the mother
and her children" (70 AD2d 943, 944 [2d Dept 1979]; see Matter of
Jaeger v Jaeger, 207 AD2d 448, 449 [2d Dept 1994] ["it was error
to admit the recording of the conversation between the father and
the son"], lv denied 84 NY2d 812 [1995]; I.K. v M.K., 194 Misc 2d
608, 611 [Sup Ct, NY County 2003] [statute contained no exception
by which father could consent to recording on behalf of
children]; People v Heffner, 187 Misc 2d 617, 618-619 [County Ct,
Rensselaer County 2001] [rejecting vicarious consent doctrine]).
Notably, the legislature, which has amended Penal Law § 250.00
since the adoption of the vicarious consent exemption by other
states and subsequent to the rejection of the doctrine by courts


                              - 10 -
                              - 11 -                         No. 71

of our state, has not sought fit to expressly incorporate that
doctrine, in general -- let alone the test now endorsed by the
majority -- into the statutes.
          There can be no question that the prevention of child
abuse, the protection of children, and the promotion of child
welfare, are paramount concerns of parents, the courts, and the
legislature.   To be sure, the primacy of such concerns may very
well justify the relaxation of eavesdropping prohibitions in the
context of parent-child relationships.   However, as the majority
recognizes in addressing various criticisms of the vicarious
consent doctrine -- such as the potential for misuse by parents,
concern for a child's privacy interests, and the possible
increase in family discord -- the determination of whether a
parent should lawfully be allowed to vicariously consent for a
child in order to record a conversation to which a child is a
party, without the actual consent or knowledge of any parties to
that conversation, is fraught with policy concerns and requires
the balancing of competing societal interests, a task more
appropriately left to the legislature, particularly in light of
the statutory silence on the issue.
          In that regard, while I appreciate the instinctive
desire to permit a parent to listen to, and perhaps even record,
a conversation such as the one at issue here, surreptitiously or
otherwise, we must be mindful that the circumstances presented
here will not be the only -- or even the most common -- type of


                              - 11 -
                               - 12 -                          No. 71

situation to which the majority's holding will apply.    For
example, parents in the midst of bitter custody disputes will now
be less deterred from eavesdropping on and recording their
children's conversations with the other parent, incentivized by
the possibility of obtaining admissible evidence prejudicial to
the other parent.   The ability to obtain evidence in this manner
-- evidence which, aside from two recent appellate decisions, has
heretofore been deemed inadmissible in New York court proceedings
-- will undoubtedly lead to increased familial tension,
escalation of hostility in divorce and custody proceedings, and
will result in mini-trials regarding whether the evidence is
admissible, thereby further prolonging such disputes, all to the
detriment of the children, themselves.3   Whether these concerns
are outweighed by the benefits of permitting parents to consent
to eavesdropping for their minor children is "a policy
determination[] . . .    beyond our authority and instead best left
for the legislature" (People v Jones, ___ NY ___, ___ 2016 NY
Slip Op 01208 [2016]).   I note only that a legislative intent



     3
        For example, while the majority asserts that the child's
age is a factor to be taken into account, its holding raises, but
does not answer, the question of whether a parent's vicarious
consent can override that of an older child who explicitly
refuses to allow a parent to listen in or record a conversation
with the other parent. Furthermore, the majority's holding does
not apply only to situations in which the third party to the
conversation is the child's other parent or step-parent. For
instance, it can logically be extended to conversations between
teenagers and their friends, as well as anyone else with whom the
minor interacts.

                               - 12 -
                               - 13 -                           No. 71

militating in favor of the majority's holding is difficult to
discern from the broad statutory language prohibiting
eavesdropping and the absence of any language supporting this new
qualification to the statutes.
            In my view, the limitation placed by the majority on
the vicarious consent doctrine -- namely, the supposedly
"narrowly tailored" good-faith, objectively reasonable, best
interest test -- does not adequately circumscribe the plethora of
communications that can be molded and manipulated to fit within
its framework (majority op., at 1).     Given the sheer variety and
numerosity of the types of situations in which the vicarious
consent doctrine may be implicated --    including, among others,
divorce and custody disputes, criminal proceedings against the
third party or the minor, juvenile delinquency and Person in Need
of Supervision proceedings, and any other dispute involving
intra-family relations -- the determination of whether such a
doctrine, unmentioned in the Penal Law, is consistent with the
State's approach to eavesdropping is complicated and policy-
laden.   As this Court recognized over a decade ago,
"eavesdropping has grown more simple and yet infinitely more
complex in the modern communication age" (Capolongo, 85 NY2d at
158).    The extent to which a parent may consent for a minor
child, and under what circumstances such consent is sufficient to
outweigh the State's established interest in deterring the covert
interception of private conversations, is a matter for the


                               - 13 -
                               - 14 -                         No. 71

legislature, not this Court.
           Finally, even assuming that the legislature did intend
for us to judicially define "consent" in Penal Law § 250.00 (2)
as articulated by the majority today, I would not apply the
vicarious consent doctrine in this case.   Although there can be
no question that defendant's manner of speaking to the child was
inexcusable and, under different circumstances may very well fall
within the confines of the test adopted by the majority, the
father's exact testimony when asked whether he feared for his
child's safety was "I didn't think [defendant] would ever put my
son in that kind of harm.   Yes, the tone was getting louder and
louder as I listened, but as far as physically, no, I didn't
think he was being harmed like that."   From my perspective, this
testimony, combined with the father's failure to contact
authorities to prevent harm from befalling the child at that time
or at any point over the next five months, casts doubt on the
father's "good faith" basis for listening to or recording the
conversation.
           Indeed, the circumstances of this case are a prime
example of the difficulty inherent in applying the majority's new
test.   The majority emphasizes that eavesdropping is permissible
through vicarious consent only in limited circumstances, pointing
out that the Sixth Circuit in Pollock remanded the matter for
closer inspection of whether the mother's real motive was concern
for her child's best interests or retaliation for the father's


                               - 14 -
                               - 15 -                         No. 71

own dalliances in eavesdropping (see majority op., at 13, 16).
Yet, in concluding that the father vicariously consented for the
child here, the majority minimizes the father's own subjective
stated lack of concern for his child's welfare, as well as the
surrounding circumstances indicating that the recording may not
have been obtained in good faith.   In fact, the test adopted by
the majority today may ultimately turn out to be an ineffectual
one because courts will likely be loathe to reject evidence
relevant to the welfare of a child, now that it may be
admissible, even if procured in bad faith.
          In sum, I conclude that the legislature's failure to
address the matter of vicarious consent in the statute, as
evidenced by its plain language, indicates that the legislature
did not intend to incorporate such a doctrine into the term
"consent" (see Penal Law § 250.00 [2]).    Thus, regardless of our
views as to the social benefits or drawbacks of permitting
parents to lawfully eavesdrop on their children, ultimately, this
is not our decision to make.   Accordingly, I would hold that,
under the particular circumstances of this case, the father
procured the recording in violation of Penal Law § 250.05 and,
consequently, admission of the highly-prejudicial tape at
defendant's trial contravened CPLR 4506.   For these reasons, I
would, at the very least, reverse defendant's conviction for
endangering the welfare of a child.




                               - 15 -
                                - 16 -                           No. 71

*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Fahey. Chief Judge DiFiore and
Judges Pigott and Garcia concur. Judge Stein dissents in an
opinion in which Judges Rivera and Abdus-Salaam concur.

Decided April 5, 2016




                                - 16 -
