OPINION OF THE COURT
Memorandum.
Order reversed on the law, defendant’s motion to suppress evidence denied and matter remitted to the court below for all further proceedings.
Defendant was chargеd with two counts of endangering the welfare of a child (Penal Law § 260.10 [1], [2]). The child is an eight-year-old boy suffering from autism, who does not speak and inflicts bodily harm upon himself. He requires special bus transportation to and from school, and the services of defendant, his personal bus matron. When the child’s mother noticed that her son was coming home with bruises and аbnormal redness on his body, she put an audio recording device into her son’s backpack before she placed him on the school bus on September 30, 2005. Defendant mоved to suppress the audio recording of her conversation on the ground that the conversation was recorded without her consent or the consent of any other party present during the conversation, in violation of Penal Law § 250.05, and should be suppressed pursuant to CPLR 4506. The People argued that the mother consented to the recording on behalf of her child, who was present during the conversation. The court below declined to adopt the People’s argument and granted defendant’s motion to suppress said evidence. The instant appeal by the People ensued.
A person is guilty of the felony offense of eavesdropping when he or she engages in “mechanical overhearing of a conversation” (Penal Law § 250.05). “Mechanical overhearing of a conversation” is defined as the “intentional overhearing or reсording of a conversation or discussion, without the consent of at
The New York eavesdropping statute is similar to the federal wiretap statute in that both statutes require consent from at leаst one party to the conversation for the recording to be lawful (compare Penal Law § 250.05, with 18 USC § 2511 [2] [d]). In construing the federal wiretap statute (18 USC § 2511), the court in Pollock v Pollock (
The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature, and the bеst evidence of that intent is the plain wording of the statute itself (McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]; see Desiderio v Ochs,
“Infanсy, since common-law times and most likely long before, is a legal disability and an infant, in the absence of evidence to the contrary, is universally considered to be lacking in judgment, since his or her normal condition is that of incompetency. In addition, an infant is deemed to lack the adult’s knowledge of the probable consequences of his or her acts or omissions and the capacity to make effective use of such knowledge as he or she has. It is the policy of the law to look after the interests of infants, who are considered incapable of looking after their own affairs, to protect them from their own folly and improvidence, and to prevent adults from taking advantage of them” (City of New York v String fellow’s ofN.Y.,253 AD2d 110 ,120 [1999], Iv dismissed93 NY2d 916 [1999]; see also 66 NY Jur 2d, Infants and Other Persons Under Legal Disability § 2).
Accordingly, it has been the common-law rule that infants are often deemed incompetent to act on their own behalf and that a parent or guardian must act for them. However, we note that there are exceptions to this rule. For example, a minor may enter into a contract which is enforceable as against the other party although the minor is generally permitted to disaffirm it (see Sternlieb v Normandie Natl. Sec. Corp.,
Finally, an additional basis for the result reached is the fact that the victim herein was autistic and incapable of communicating. Autism is defined under Mental Hygiene Law § 1.03 (22) (a) (1) as a mental disability. There must be a balance between important competing public policy considerations of protecting those with disabilities from abuse and protecting citizens against eavesdropping. Under the common law, the welfаre and safety of children has always been paramount. Under the law today, we hold that the same standard applies to persons with disabilities, such as involved herein.
In view оf the foregoing, the order suppressing the evidence should be reversed and defendant’s motion denied.
(dissenting and voting to affirm the order in the following memorandum). It is well settled that in construing a statute, a court should attempt to effectuate the intent of the Legislature (see Majewski v Broadalbin-Perth Cent. School Dist,
Here, the meaning of Penal Law § 250.05 is clear as written. A person is guilty of eavesdropping “when he unlawfully engages in . . . mechanical overhearing of a conversation.” “ ‘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]). Thus, Penal Law § 250.05 рrohibits the interception or recording of a conversation or discussion without the consent of a person who is a party thereto. Although the issue of whether a pаrent can consent to such recording on behalf of a child is one of first
Golia and Belen, JJ., concur; Weston Patterson, J.P, dissents in a separate memorandum.