DIVORCE - INTRODUCING TAPED PHONE CALL

Perlman v Perlman, 2018 NY Slip Op 05212, Decided on July 11, 2018, Appellate Division, Second Department:

"We agree with the Supreme Court's determination denying that branch of the defendant's motion which was to preclude the plaintiff from offering a tape recording of a telephone call into evidence at trial. Generally, "[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]). "A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication" (Penal Law § 250.05). Here, the plaintiff's actions in recording a telephone call, which apparently took place between the defendant and the children after the defendant requested that the children place the call on speaker so that the plaintiff could hear what he had to say, did not constitute the crime of eavesdropping. The plaintiff's actions did not amount to "mechanical overhearing of a conversation[,]" as she was present at, and a party to, the conversation at issue (Penal Law § 250.00 [2]; cf. People v Badalamenti, 27 NY3d 423, 432). Thus, we agree with the court's determination that the recordings of that conversation were admissible pursuant to CPLR 4506(1) (see CPLR 4506[1]; Penal Law §§ 250.05, 250.00 [1], [2])."