Opinion
V-xxxxx/14
03-16-2016
D.K., Petitioner, v. A.K., Respondent.
Michael Reilly, Esq. for the petitioner-mother Yonatan Levoritz, Esq. for the respondent-father The Children's Law Center, by Cynthia Lee, Esq., attorney for the children
Michael Reilly, Esq. for the petitioner-mother
Yonatan Levoritz, Esq. for the respondent-father
The Children's Law Center, by Cynthia Lee, Esq., attorney for the children
Robert D. Mulroy, J.
This is a child custody case brought pursuant to article 6 of the Family Court Act. The child who is the subject of this case is E.K., date of birth June 26, 2005. Petitioner D.K. is her mother. Respondent A.K. is her father. Respondent has made the instant motion seeking an order pursuant to CPLR 4506 suppressing the use of recordings of conversations respondent had with the subject child and further directing petitioner to turn over to respondent's counsel all copies of such recordings. Petitioner and the attorney for the child both oppose the motion, albeit for different reasons. Petitioner argues that, as the child's mother, she may vicariously consent to the surveillance and recording of her daughter's telephone conversations. According to this theory there would be no violation of CPLR 4506 or PL 250.05, New York's anti-eavesdropping statutes, since one of the parties to the call consented to the recording—that party being the child through her mother. The attorney for the child argues that respondent himself disclosed the contents of the recorded conversations to third parties and as such waived any objection to their future use at trial.
It is undisputed that for a period of time petitioner-mother recorded telephone conversations between E.K. and respondent-father. These recordings were made without the knowledge or consent of either the father or E.K. Ms. K. has stated in her affidavit in opposition to the instant motion that in September of 2014 she noticed E.K. was engaging in frequent and lengthy telephone conversations. She asked E.K. whom she was speaking with and, according to Ms. K., E.K. said it was sometimes her friend S and sometimes her friend F. Ms. K. stated that she then spoke to one of S's parents who denied knowledge of such conversations. Ms. K. did not say she spoke with the parents of F. Ms. K. stated that based upon this and changes she alleges in E.K.'s behavior she installed "a recording device" on the telephone and recorded E.K.'s conversations. The recordings of these conversations were given to the New York City Administration for Children's Services, the New York City Police Department, and the offices of the District Attorneys for Kings County and Westchester County. ACS filed a child abuse petition against respondent-father under Kings County docket number NA-07234/15. However on October 2, 2015 ACS withdrew the abuse case. Further, to this court's knowledge no criminal case has been brought against respondent-father in any court based upon the content of these recorded telephone conversations.
CPLR 4506 provides that evidence of any overheard or recorded communication, or evidence derived therefrom, that is obtained through unlawful eavesdropping is inadmissible at trial. One of the purposes of this statute is to deter illegal activity on the part of a private individual. People v. Capolongo , 85 NY2d 151, 623 N.Y.S.2d 778 (1995). A party aggrieved by such activity may bring a motion seeking the suppression of such evidence. CPLR 4506 (3)(a). The definition of an aggrieved person includes someone who was a party to a telephone conversation that was recorded without the knowledge or consent of one of the parties to the call. CPLR 4506 (2)(a).
An exception to this rule, not applicable here, permits the introduction of such evidence in a case brought against the person who engaged in the unlawful eavesdropping.
The statute incorporates Penal Law 250.05 which provides that a person commits unlawful eavesdropping by wiretapping or by mechanical overhearing of a conversation. PL 250.00(1) defines "wiretapping" 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.
PL 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.
These Penal Law sections are applicable to proceedings in Family Court. See, e.g. Czop v. Czop, 21 AD3d 958, 801 N.Y.S.2d 63 (2d Dept., 2005).
It is uncontroverted that in this case the mother engaged in actions that would constitute a violation of the anti-eavesdropping statutes. She admits that she recorded telephone conversations between the father and the child without the knowledge or consent of either of them. She argues, however, that she was permitted to record the conversation under the theory of vicarious consent. Under this theory, a parent who has a good faith, objectively reasonable basis to believe that the child's best interest requires the recording of a conversation may do so without violating either the Penal Law or CPLR 4506. People v. Badalamenti , 124 AD3d 672 , 1 N.Y.S.3d 242 (2d Dept.), leave to appeal granted 25 NY3d 949, 7 N.Y.S.3d 278 (2015). What is a good-faith, objectively reasonable basis will vary from case to case and is fact-specific. For example, in Badalamenti, supra, the father called the mother's cell phone and the mother picked up but did not talk. The father then overheard a confrontation between the mother, another adult and the child and decided to record it. The court determined that the father had the ability to consent to the recording on his child's behalf. In People v. Bradberry , 131 AD3d 800, 16 N.Y.S.3d 97 (4th Dept., 2015) the court held that the mother of a child could consent to the recording of a police-monitored call between the child and a person suspected of predatory sexual assault of a child. In People v. Clark , 19 Misc 3d 6, 855 N.Y.S.2d 809 (App.Term, 2d Dept., 2008), the mother of an autistic child who was unable to speak noticed the child returning home from school with bruises and abnormal redness. She placed a recording device in the child's backpack which recorded a conversation between the child and the school bus matron. The court held that the objective evidence of the injuries plus the child's autism mitigated in favor of not suppressing the recordings.
The instant decision was issued prior to the Court of Appeals decision in People v. Badalamenti at 27 NY3d 423, 34 N.Y.S.3d 360 (2016).
Here, the facts are very different from those of the above cited cases. The mother in this case decided to surreptitiously record the child's conversations based solely on the child having lengthy conversations on the telephone and what she perceived as changes in the child's behavior. The child said she was speaking with her friend S and her friend F. Ms. K. states that she then spoke to only one of S's parents, not both, and that one parent denied knowledge of such conversations. The mother did not inquire of the parents of the other child and did not go back to E.K. and confront her with the denials of S's parent. Under these circumstances the mother did not have a good faith and objectively reasonable basis to record these conversations. It would therefore be improper for the court to consider the content of these conversations. Perez v. Sepulveda , 60 AD3d 1072 (2d Dept., 2009).
In further support of suppression is the fact that these recorded telephone conversations have been investigated by the office of the District Attorney and by the Administration for Children's Services. No criminal case has been filed and although ACS did commence a child protective case they withdrew it.
The child's attorney argues that while the recording by the mother was not justified and otherwise should be suppressed, the father has waived any objection by disclosing the content of the conversation, particularly to Dr. S.B., a psychiatrist. This disclosure resulted in Dr. S.B. filing a report which concluded that the conversations contained no inappropriate sexual content.
Since the matter of these telephone conversations were being investigated by the office of the District Attorney of Kings County and Westchester County and by the New York City Administration for Children's Services, it is not surprising that the father would seek to obtain exculpatory evidence to use in his own defense. It would be unfair for the father to have his private conversations unlawfully recorded and turned over to criminal and child protective authorities for investigation and then penalize him for using these transcripts himself to defend against potential charges, charges which, it is again noted, were not brought. The disclosure of the transcripts to Dr. S.B. argues less for the admission of the conversations but more for the exclusion of the doctor's report.
Based on the foregoing, the motion to suppress is granted. The mother is prohibited from introducing these recorded conversations or their transcripts into evidence. Neither party shall disclose evidence of these conversations to any witness, expert or otherwise. No witness shall be permitted to give testimony based upon such evidence since CPLR 4506 provides for the suppression of the recordings and evidence derived therefrom.
The father also moves for an order requiring the mother to turn over to him all copies of the recordings. However, CPLR 4506 is an evidence statute—it does not provide for a cause of action or a remedy other than exclusion. Pure Power Boot Camp v. Warrior Fitness Boot Camp. , 587 F. Supp.2d 548 (S.D.NY 2008). Further, evidence that is not admissible under CPLR 4506 might be used for a non-litigation purpose. For example, in I.K. v. M.K , 194 Misc 2d 608, 753 N.Y.S.2d 828 (Sup. Ct., N.Y.Co., 2003) the court held that unlawfully recorded telephone conversations between the children and their mother, while not admissible, could be shown to the child's therapist who was not being called as a witness in the case.
Based on the foregoing, the motion the mother to turn over the recordings is denied.