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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 twofamily 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-yearold 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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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

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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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(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. 

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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 fiveyear-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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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

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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

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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.

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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

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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. 

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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]). 

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- 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. 

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- 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

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- 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 goodfaith, 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

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- 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

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- 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,

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- 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'"

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- 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

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- 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

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- 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.

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- 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 policyladen. 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

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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

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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. 

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* * * * * * * * * * * * * * * * *

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

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