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005 NOV-18-2008 TUE 05:05 PM VERGILIS,STENGER,ROBERTS FAX NO, 8452982842 p, 03 RECEIVE[: NOV 1 9 TOWN CLERK MEMO TO: Town Board FROM: Joan F. Garrett) Esq. Albert P. Roberts) Esq. DATE: November 18, 2008 RE: Tape Recording of Conversations Question: What is the legality of tape recording conversations if one person consents to it or is aware of the tape recording and the other party to the conversation is not. i.e. where one employee tapes another employee without that employee's knowledge? Analysis: Tape recording is under the purview of the Penal Law ~ 250 which defmes eavesdropping as follows: "mechanical overhearing of a conversation means the intentioml 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... ". - 1 - O:\Wl\ppinger\Town BollTd\I-OPINIONS\TlIpt: Recording of CcllYcreftlions . J I /208 JFG,doc NOV-18-2008 TUE 05:05 PM VERGILIS,STENGER,ROBERTS FAX NO. 8452982842 P. 04 By definition, the taping of a conversation is illegal unless one pam to a conversation has consented to the recordinfl. See People v. Powers, 42 A.D. 3016, 839 NYS 2d 865, 3rd Dept. (Recorded conversation did not constitute the crime of eavesdropping were it was obtained with consent of either the caIler or receiver of the communication.) In the case of Boatswain v. Boatswain, 3 Mise.3d 803, 778 NYS 2d 850, the Supreme Court, Kings County, held that "in order for a wire tap to be admitted into evidence there must have been consent of at least one party to the tape recording." (Note: Tbis case involved a telephone conversation which was recorded with the consent of one of the parties.) Under the discussions for Penal Law ~ 250.05, (eavesdropping statute), the commentators discllss that a "mechanical overhearing" under this statute must be accomplished by a person not present at the conversation or discussion and without the consent of a party to the conversation or discussion in order for it to be a crime. "Normally, a person present at the conversation or discussion will be a party thereto and thereby free to surreptitiously record the conversation or discussion as the drafters of the fonn of law upon which the present law premise put it: the investigator who carries a concealed recording device while interviewing witnesses, or the man who secretly records his own office conversations, may not be desirable persons with whom to talk confidentially; they are not included in this legislation," Leg. Voc. [1957) 29 ~ 2 - RECEIVED NOV 1 9 2008 TOWN CLERK 0:\ WQPpinger\ Town Board\ I-OPINIONSITape Reoorlling of Conversations _ 111208 JI'C, l10c NOV-18-2008 TUE 05:05 PM VERG1LIS,STENGER,ROBERTS FAX NO. 8452982842 P. 05 The Commentaries further state that it is possible that a person may be present at a conversation or discussion and yet not be a party in the sense of being an active participant to the conversation or discussion. Those who talk in the Rresence of a non- participating third Partv can have no expectation of privacy with respect to statements over heard by the third party. For instance, an autistic child's mother put an audio recording device in her child's back pack after noticing that he was coming home from school with bruises and abnormal redness on his body. The Court found that she demonstrated a good faith. objectively reasonable basis to believe that it was necessary for the child's welfare to make recordings of conversations of child's personal bus matron while the child was present. This established that the mother lawfully consented to recording on the child's behalf, and thus mother did not violate the eaveSdropping statute by making the recording. People v. Clark, 2008 WL 141670. In Chin v. American Telephone and Telegraph Company, 96 Misc. 2d 1070,410 NYS 2d 737, New York COtUlty Supreme Court, in a discharge of an employee at will case, in a footnote, stated that a tape recording made with the consent of one of the parties was not a violation of Penal Law ~ 250 and 250.05. and that "moreover evidence illegally obtained by a plivate party is admissible in n civil action:' Seckler v. Seckler, 16 A.D. 2d 423,229 NYS 2d 61, affirmed IS NY2d 40,255 NYS 2d 83. RECEIVED NOV ! 9 TOWN CLERf.< - 3 - 0;\ Wllpprllg~r\Town gOllrd\l.OPINlONS\Tilp~ Recording of Conv~rslltions _ 1112081FO.dDc