Secret Recordings OK’d|to Protect New York Kids

     MANHATTAN (CN) – New York’s eavesdropping law does not prevent a concerned father from making a secret cell phone recording of a man who threatened to beat his five-year-old son, the state’s top appeals court ruled.
     In 2009, a jury convicted Anthony Badalamenti of assaulting a child based partly on evidence that his lawyers characterized as an illegal wiretap.
     The boy’s father used his cellphone to call the child’s mother several times on May 6, 2008, and, not reaching her, finally heard that the call went through but nobody responded.
     On the open line, the father overheard disturbing chatter in the mother’s apartment and decided to hit record.
     As summarized by New York’s Court of Appeals, the father overheard the mother and Badalamenti, her boyfriend, yelling at the weeping child.
     Jurors heard the recording of Badalamenti telling the boy that “he was going to hit him 14 times for lying and that this would hurt more than a previous beating,” according to the 39-page opinion.
     At trial, the state brought several other witnesses to corroborate the father’s evidence.
     One of them, the landlady of the apartment, testified at trial that she overheard the boy later that year, after he had turned six years old, begging “Anthony” to stop hurting him and noticed what appeared to be a beating with a strap.
     “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,’ the opinion said. “This conversation was not reported to any authority.”
     On appeal, Badalamenti’s attorney Marianne Karas argued that the father’s recording unfairly prejudiced the jury because it had been made illicitly.
     Writing for the majority, Judge Eugene Fahey found on Tuesday that the father gave consent on his child’s behalf.
     “It was reasonable for the father to conclude that making the recording was necessary to serve the child’s best interests,” Fahey wrote. “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.”
     A trial court in Utah and the Cincinnati-based Sixth Circuit Court of Appeals reached similar conclusions in other cases. Shams Tarek, the communications director for the Nassau County District Attorney’s office, noted that 12 other states make such an allowance.
     “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 minor 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,” Fahey wrote for the majority.
     Despite finding the majority’s cause “laudable,” Judge Leslie Stein worried about the precedent such a finding might have.
     “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,” she wrote.
     However, she said that granting parents the right to consent to a recording their children is “fraught with policy concerns and requires the balancing of competing societal interests, a task more appropriately left to the Legislature.”
     “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,” she said.
     Situations like these 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,” Stein wrote in dissent.
     Badalamenti’s attorney Karas did not immediately respond to telephone requests for comment.
     The Nassau County District Attorney’s office called the opinion a “victory for parents and for vulnerable children in New York State.”
     “At issue in this case was a recording of a child being abused,” the office said in a statement. “We are pleased that the court accepted our common-sense argument that parents absolutely have the right to use a recording such as this one to protect their child.”

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