Legal Questions for our Verified Lawyers #4

[rotterdam]

bold added.



The answer is : THIS:


:http://www.cfnews13.com/static/articles/images/documents/Motion_to_Stay_Sentence__Motion_For_Post-Conviction_Release__Order_on_Matthew_Bartlett.pdf

State VS The Dude

The defendant who did not have a statutory right to an automatic stay, as in State VS your dude, would have to file a motion asking for the stay.
The motion was filed. It was denied.


MH sharing an opinion:wolf:
:seeya:

Let me understand this.
The Dude filed a motion/appeal in same circuit court and it was denied.
If the Dude would file now an appeal with the district/appellate court, only then would he get an automatic stay up to the point when the appeal hearing starts/is decided on? Hypothetical of course because he should be out of jail anyway by now.

 

[mag84]

bold added.



The answer is : THIS:


:http://www.cfnews13.com/static/articles/images/documents/Motion_to_Stay_Sentence__Motion_For_Post-Conviction_Release__Order_on_Matthew_Bartlett.pdf

State VS The Dude

The defendant who did not have a statutory right to an automatic stay, as in State VS your dude, would have to file a motion asking for the stay.
The motion was filed. It was denied.


MH sharing an opinion:wolf:
:seeya:

Thank you!! Now I sort of understand. I read the Denied motion, and that makes sense, thank you for the link! I'm a pretty smart girl, but law makes my head hurt.

 

[DesSands]

There was no probation on the lying charges because Casey got the maximum sentence (1 year) for each count.

I don't think there would be any problem with the probation time running concurrently with the jail time on the other counts. What I think does NOT make sense is the fact that her "time served" on the check fraud charges was counted toward the "time served" for the lying charges.

I've been saying that since day one and another attorney agreed with me. I'm not an attorney, but I can add and it didn't seem right. I mentioned that I was going to write to JP, and wahlah, PROBATION. :great:
So my point and question is, do you think a nice friendly reminder and lots of bantering from people up in arms would help?
I do believe the pressure from the masses did help JP decide in a way, and it is fair too.

 

[MiraclesHappen]

Let me understand this.
The Dude filed a motion/appeal in same circuit court and it was denied.
If the Dude would file now an appeal with the district/appellate court, then he would get an automatic stay? Hypothetical of course because he should be out of jail anyway by now.

No.
Automatic stays are a matter of statutes and procedure.
There is no legal authority which would create an automatic stay for the Dude.
Criminal contempt is a different animal. It is usually a violation of common law principles as opposed to a series of statutes which will define a crime (things that are illegal for dudes to do).
For example, Murder is defined by statute.
Statutes will then enumerate the different types of murder.
You won't find a similar series of statutes enumerating the degees of idiocy which generate contempt charges.
I think it's one of those----"Do we really have to tell you that you shouldn't do this?"----type things.
It's Common Law still trying to instill some sort of common sense.

Blatant disrespect for the Court and/or for Judicial proceedings will usually generate this kind of swift punishing action as was experienced by Dude-In-Cuffs.
If the Dude is already in the Court as a Dude-defendant, (not just a spectator) and engages in this sort of nutty/disrespectful behavior, the attorney who is there on behalf of the dude-gone-wild will quite often experience a version of the hurting head as referenced by Mag84.uch:

Try putting a positive spin on what- dude-did.

Thank you!! Now I sort of understand. I read the Denied motion, and that makes sense, thank you for the link! I'm a pretty smart girl, but law makes my head hurt.

I thought it would clear things up.
By the way, :bud:so as to head off potential other questions at the pass:

Yes, The defendant was given a Court-appointed atty.
Since the contempt is a jailable offense, the Florida Supreme Court has ruled that the offer of counsel should be made. That decision is from 2011, as I recall.
Justice is, as you saw, a much swifter process in a contempt proceeding. You lose alot of the notice requirements and other things which would normally :snail::snail::snail:slow the wheels.
Most of the contempts (not rising to the level of a new crime) that I have seen have been of the "Oh my God, I cannot believe somebody just did that"
type. opcorn:
The conduct is not necessary, ill thought out, and is going to have a result
which is designed to send a clear message to others thinking about disrupting Court.
It is NEVER a good idea to test the question as to how much disrespect any Judge will tolerate. NEVER!

I personally have little patience for that sort of behavior.
Can you really not live the rest of your life unless you start swearing at the judge, throwing a chair around the room, etc.
As a defendant, what kind of message are you sending about your new-found abilities to think things through. hdear:
OOPS, tangent.

I hope you noticed that Dude's motion was ordered denied by Judge Perry. :denied:
I can't recall seeing it done any other way.

I've always seen the decisions about the contempt go before the Judgewho instituted the proceedings.

Since it is a different animal, the personal involvement of the Judge in the chain of events leading to the incarceration (after all, it happened in his Courtroom) is not an issue.
Picture yourself as the attorney for the dude.

You are now before the actual extremely ANNOYED Judge who will send the aforementioned message to others who might be considering similar types of behavior. :crystalball:Oh gee, this is lookin good. :scream: :scream: :anguish:


MH
sharing an opinion:wolf:

 

[mag84]

No.
Automatic stays are a matter of statutes and procedure.
There is no legal authority which would create an automatic stay for the Dude.
Criminal contempt is a different animal. It is usually a violation of common law principles as opposed to a series of statutes which will define a crime (things that are illegal for dudes to do).
For example, Murder is defined by statute.
Statutes will then enumerate the different types of murder.
You won't find a similar series of statutes enumerating the degees of idiocy which generate contempt charges.
I think it's one of those----"Do we really have to tell you that you shouldn't do this?"----type things.
It's Common Law still trying to instill some sort of common sense.

Blatant disrespect for the Court and/or for Judicial proceedings will usually generate this kind of swift punishing action as was experienced by Dude-In-Cuffs.
If the Dude is already in the Court as a Dude-defendant, (not just a spectator) and engages in this sort of nutty/disrespectful behavior, the attorney who is there on behalf of the dude-gone-wild will quite often experience a version of the hurting head as referenced by Mag84.uch:

Try putting a positive spin on what- dude-did.



I thought it would clear things up.
By the way, :bud:so as to head off potential other questions at the pass:

Yes, The defendant was given a Court-appointed atty.
Since the contempt is a jailable offense, the Florida Supreme Court has ruled that the offer of counsel should be made. That decision is from 2011, as I recall.
Justice is, as you saw, a much swifter process in a contempt proceeding. You lose alot of the notice requirements and other things which would normally :snail::snail::snail:slow the wheels.
Most of the contempts (not rising to the level of a new crime) that I have seen have been of the "Oh my God, I cannot believe somebody just did that"
type. opcorn:
The conduct is not necessary, ill thought out, and is going to have a result
which is designed to send a clear message to others thinking about disrupting Court.
It is NEVER a good idea to test the question as to how much disrespect any Judge will tolerate. NEVER!

I personally have little patience for that sort of behavior.
Can you really not live the rest of your life unless you start swearing at the judge, throwing a chair around the room, etc.
As a defendant, what kind of message are you sending about your new-found abilities to think things through. hdear:
OOPS, tangent.

I hope you noticed that Dude's motion was ordered denied by Judge Perry. :denied:
I can't recall seeing it done any other way.

I've always seen the decisions about the contempt go before the Judgewho instituted the proceedings.

Since it is a different animal, the personal involvement of the Judge in the chain of events leading to the incarceration (after all, it happened in his Courtroom) is not an issue.
Picture yourself as the attorney for the dude.

You are now before the actual extremely ANNOYED Judge who will send the aforementioned message to others who might be considering similar types of behavior. :crystalball:Oh gee, this is lookin good. :scream: :scream: :anguish:


MH
sharing an opinion:wolf:

Thank you again!! I vote this for a post of the day award. You not only explained it where we non-law types can understand (at least this girl), you made me LOL and entertained me and got rid of my law headache uch:. Hmmm, there should be a pill for that. Thank you!!

And yes, I did read the motion you provided the link to and so saw (legal speak ) the Denied :denied: and understand that now.

Thank you!!! :great: You :rocker:

 

[AZlawyer]

I've been saying that since day one and another attorney agreed with me. I'm not an attorney, but I can add and it didn't seem right. I mentioned that I was going to write to JP, and wahlah, PROBATION. :great:
So my point and question is, do you think a nice friendly reminder and lots of bantering from people up in arms would help?
I do believe the pressure from the masses did help JP decide in a way, and it is fair too.

This was re: the "time served" for check fraud also counting as "time served" for lying to LE, right?

I don't think any public outrage will change HHJP's mind on that one. At first I thought maybe it was a mistake, but certainly someone would have mentioned it to him by now--and before the calculation came out, he specifically said he had to look at the effect of the check fraud sentence--so it kinda looks like he did it on purpose. :waitasec: For some reason. :waitasec:

 

[rotterdam]

This was re: the "time served" for check fraud also counting as "time served" for lying to LE, right?

I don't think any public outrage will change HHJP's mind on that one. At first I thought maybe it was a mistake, but certainly someone would have mentioned it to him by now--and before the calculation came out, he specifically said he had to look at the effect of the check fraud sentence--so it kinda looks like he did it on purpose. :waitasec: For some reason. :waitasec:

I have had this question for many moons.
Do defense lawyers have any previous input and/or knowledge with the Judge after their client is found guilty, of the sentence that will be imposed prior to the actual sentence hearing? Like a professional courtesy and also to avert possible appeals..
Or is that a complete unknown , like for the rest of us.
Reason for asking, HHJP gave a rather harsh sentence for misdemeanors, the max and also consecutive but then gave a break by running concurrent with the fraud charges.

 

[AZlawyer]

I have had this question for many moons.
Do defense lawyers have any previous input and/or knowledge with the Judge after their client is found guilty, of the sentence that will be imposed prior to the actual sentence hearing? Like a professional courtesy and also to avert possible appeals..
Or is that a complete unknown , like for the rest of us.
Reason for asking, HHJP gave a rather harsh sentence for misdemeanors, the max and also consecutive but then gave a break by running concurrent with the fraud charges.

No, not here anyway. But attorneys should be prepared to argue about the entire possible range of sentences.

 

[MiraclesHappen]

I have had this question for many moons.
Do defense lawyers have any previous input and/or knowledge with the Judge after their client is found guilty, of the sentence that will be imposed prior to the actual sentence hearing? Like a professional courtesy and also to avert possible appeals..
Or is that a complete unknown , like for the rest of us.
Reason for asking, HHJP gave a rather harsh sentence for misdemeanors, the max and also consecutive but then gave a break by running concurrent with the fraud charges.

No, the defense lawyer can't just go knock knock knockin on Chambers Door to try to sway a Judge, or to get input as to what's upcoming in the world of sentencing.
BUT,
that doesn't necessarily mean it's a complete unknown.
Don't forget. Quite often there are extensive negotiations as to what a sentence should be. These negotiations :bigfight: are going on between the prosecutor and the defense attorney.

The Judge isn't in that loop.
While the Judge might talk to both lawyers involved, so as to encourage
getting the case worked out, the Judge isn't debating what the sentence should be.
If the prosecution and defense reach an agreement, you have an agreed upon recommendation to present to the court at sentencing.
My people call it a :deal: deal.
Defense lawyers generally have a pretty good idea as to what Judge will adopt what recommendation and who won't do it.
They also know what Judge has done what with what crime in the past.

It's not a perfectly functioning crystal ball :crystalball:, but it usually gives accurate predictions.
In other words, it's not a complete unknown. You'll have a good idea as to what will happen with sentencing but there are never any guarantees.
Even when the attorney feels there's a really good chance that things will work out for the client, an impassioned argument will none the less be presented to :crossfingers: :bowdown: get the best possible result.

That's how it should be done.


I did not view the lying sentencing as harsh. The defendant was not new to the system and came before the Court with a history of convictions for felony forgeries and uttering. :winko:

I'm not convinced the lying sentence ran concurrent with the check sentence.
In order for sentences to be concurrent, they are being served at the same time.
(I am in jail for Crime A. I am also doing time for Crime B).

The time served sentence for the checks caused the defendant to revert back to being held on bail.
Therefore, on the day of sentencing for the lying convictions, the defendant
had already completed the check sentence and was not serving that sentence any more.
I believe what you are calling concurrent is a reference to the same
period of time going as credit for the check sentence and then, in the future, again going as credit for the lying sentence.

It's the double dipping :sundae: :sundae:we talked about.

But when a Judge says that a sentence is ordered to be served concurrently, there has to be a second sentence so that the sentence now being ordered can be concurrent with something else. :spinner:

There was no something else here.


hope that isn't too confusing!
MH :wolf:
with an opinion

No, not here anyway. But attorneys should be prepared to argue about the entire possible range of sentences.

ditto...nth...infinity

 

[rotterdam]

No, not confused MH . Tks so much for that explanation.
Can not use the word concurrent when a completed sentence is involved. Has to be actively running, has a positive balance left and/or still has to be started.
Only double dipping/credit for time/days(1042) already served in the picture here.

Which was more than D.O.C (the experts) anticipated prior to the sentencing since their preliminary calc. took KC release date to somewhere in August and not July.

For some reason, I always thought that if pleading not guilty, as opposed to guilty/no contest, you were pretty well at the mercy of the court/jury. But now I understand DT and PT in team effort can make a sentence recommendation to the Judge prior to the actual sentencing, even when the defendant originally pleaded not guilty.

One more question. When a defendant is out on bail, can any credit days be awarded towards a sentence for that period? After all , it is an imposition on the defendant, limiting their freedom.

 

[Aedrys]

LOL at The State vs. The Dude. I keep thinking the Big Lebowski is involved somehow!

Anyway, to my question. Can Casey use mental illness as a way to get out of working during probation or having to live in Orlando? We've been disputing this in another thread, and I wanted to know for sure if that is legal. Could she legally do something like check into a mental facility at the last minute and not report to Orlando? Or use staying in a mental facility as a reason to not get a job? It's odd that JB is now mentioning Casey wanting therapy right before she has to report. I guess I'm just wondering if this more legal shenanigans to avoid responsibility in some way.

 

[mom_in_il]

I'm confused by the "Motion To Relinquish Jurisdiction" filed by the Attorney General in CASEY MARIE ANTHONY vs. STATE OF FLORIDA

And the "Order to Show Cause" due by 08/22/2011 (Notes: AA FILE A RESPONSE AND SHOW CAUSE ON OR BEFORE MONDAY, 8/22 WHY AE'S MOT RELINQ JURIS SHOULD NOT BE GRANTED. AA MAY FAX A COPY OF ITS REPONSE TO THE COURT AT 386-947-1562 BUT MUST ALSO FILE THE ORIGINAL W/ THE COURT. ATTYS SHALL ALSO EMAIL.)

5th DCA site: http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2011&p_casenumber=2357&psCourt=5&psSearchType=

Can you please explain these entries and what's going on? TIA!

 

[strawberry]

I'm confused by the "Motion To Relinquish Jurisdiction" filed by the Attorney General in CASEY MARIE ANTHONY vs. STATE OF FLORIDA

And the "Order to Show Cause" due by 08/22/2011 (Notes: AA FILE A RESPONSE AND SHOW CAUSE ON OR BEFORE MONDAY, 8/22 WHY AE'S MOT RELINQ JURIS SHOULD NOT BE GRANTED. AA MAY FAX A COPY OF ITS REPONSE TO THE COURT AT 386-947-1562 BUT MUST ALSO FILE THE ORIGINAL W/ THE COURT. ATTYS SHALL ALSO EMAIL.)

5th DCA site: http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2011&p_casenumber=2357&psCourt=5&psSearchType=

Can you please explain these entries and what's going on? TIA!

I was just going to ask this too! Seems to be for the 4 conviction appeals?

 

[logicalgirl]

A question was asked over in the Probation Thread - I think by Strawberry - that I wondered about also. :waitasec: So I strolled over to ask our legal heads...the question is:

How many Bar complaints does the Bar investigate against the average criminal defense lawyer in a year or two - on an average? Any ideas?

Mr. Baez appears to be crossing their desks rather frequently these days it seems..:innocent:

 

[MiraclesHappen]

No, not confused MH . Tks so much for that explanation.
Can not use the word concurrent when a completed sentence is involved. Has to be actively running, has a positive balance left and/or still has to be started.
Only double dipping/credit for time/days(1042) already served in the picture here.

Which was more than D.O.C (the experts) anticipated prior to the sentencing since their preliminary calc. took KC release date to somewhere in August and not July.

For some reason, I always thought that if pleading not guilty, as opposed to guilty/no contest, you were pretty well at the mercy of the court/jury. But now I understand DT and PT in team effort can make a sentence recommendation to the Judge prior to the actual sentencing, even when the defendant originally pleaded not guilty.

One more question. When a defendant is out on bail, can any credit days be awarded towards a sentence for that period? After all , it is an imposition on the defendant, limiting their freedom.

I didn't think you were confused.
The concern was more along the lines of :
"Now that I have explained it,:crazy: no one on earth understands it.":waitasec:

If that happens, I might have to ask you to come in and interpret for me.:wink:

I don't know any legal basis for giving credit to someone not actually in custody.

While there might be an "imposition" on the defendant, I would more readily use that term as applied to the crime victims.

LOL at The State vs. The Dude. I keep thinking the Big Lebowski is involved somehow!

Anyway, to my question. Can Casey use mental illness as a way to get out of working during probation or having to live in Orlando? We've been disputing this in another thread, and I wanted to know for sure if that is legal. Could she legally do something like check into a mental facility at the last minute and not report to Orlando? Or use staying in a mental facility as a reason to not get a job? It's odd that JB is now mentioning Casey wanting therapy right before she has to report. I guess I'm just wondering if this more legal shenanigans to avoid responsibility in some way.

Don't think it will work if that's what is motivating the desire for treatment.

Nothing the defense team does is going to alter or repeal the statutes and rules governing probation.
As far as using therapy to get out of probation, let me just step back :back: and remind you--
It is not uncommon for counseling to be ordered as a part of probation.
In house treatment can also be ordered as a part of probation.
These are ingredients of probation in my opinion.
They aren't part of a different legal recipe to accomplish some other goal.

If an attorney has a client who enters residential treatment, the attorney usually comes into Court with motions addressing the issues created by having the client "unavailable."
Defendants' obligations can be put off to a later date....or not.
If the extension of time is allowed by the Judge, it won't wipe out the obligations (as in probation), it might delay the start date. :snowball:

But the probation still has to be done. hwow:
Defendants are not running that show.

Courts are quite familiar with the book of "ploys & plots." They hear it all.

Having someone unavailable to come to Court because the same relative has passed away AGAIN, is in that book.

Sometimes there are legitimate reasons to excuse a defendant for the time being, or to alter timelines. (defendant is having emergency surgery and it has been quadruple verified by a team of doubting-cynics).hone:hone:hone:

But someone who is under a Court order to do something can't just "tra-la-la" :skip: a way out of it.
Oh, if the motions brought on behalf of the defendant, the ones to excuse or defer, get denied, that's when arrest warrants come into play. Also, Courts can move things up. (legal opposite of defer:innocent.



My opinion based on my experience
MH :wolf::seeya:

PS Dude! :loveyou:

 

[MiraclesHappen]

I'm confused by the "Motion To Relinquish Jurisdiction" filed by the Attorney General in CASEY MARIE ANTHONY vs. STATE OF FLORIDA

And the "Order to Show Cause" due by 08/22/2011 (Notes: AA FILE A RESPONSE AND SHOW CAUSE ON OR BEFORE MONDAY, 8/22 WHY AE'S MOT RELINQ JURIS SHOULD NOT BE GRANTED. AA MAY FAX A COPY OF ITS REPONSE TO THE COURT AT 386-947-1562 BUT MUST ALSO FILE THE ORIGINAL W/ THE COURT. ATTYS SHALL ALSO EMAIL.)

5th DCA site: http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2011&p_casenumber=2357&psCourt=5&psSearchType=

Can you please explain these entries and what's going on? TIA!

I was just going to ask this too! Seems to be for the 4 conviction appeals?

Good news!!!!!

I have NO, none, nada, zippo, and I am rounding off to the nearest number----ZERO- appellate experience.

Here's what I think is going on though.

My understanding is that the subject matter is the probation order.
I cannot get the links to open up the motions. Does anybody have the motion available? :help:

The Attorney General (who is now responsible for arguing the case--It's Casey Anthony VS State of Florida---State of Florida as in Attorney General)
has filed a motion to relinquish jurisdiction.

This case came out of Orlando Circuit Court (Judge Perry's domain) and is now at the 5th District Court of Appeal in Daytona.

Once the appeal is filed, jurisdiction moves with the appeal so that jurisdiction for the case will move to the appellate court and out of the circuit court. It goes from Judge Perry's Courthouse to the 5th District Court in Daytona.

If, as I suspect, we are talking about the order to do the probation,
then Judge Perry has already made & explained his order.
That triggered this appeal. (Some people are just NEVER happy:shakehead.


Since legal jurisdiction is now taken away from Judge Perry's Court, he is prevented from adding to his ruling or doing anything else to justify it.

The only way to allow his Court more involvement with the ruling is to have the Appellate Court give up their current jurisdiction and to relinquish it to the court of origin for the appeal. (Orlando).

This could allow the original Court in Orlando to expound upon the probation order. They get jurisdiction back.

The motion, if allowed, won't cancel out the appeal.

It is not a rejection per se.

It will give the Appellate Court more to work with relative to their review of Judge Perry's final order.


Any objections to this motion are due on or before 8/22/2011.

That's the second entry.

There is mention of the "AE's" motion in those entries.

I don't know if it's a typo but since it is the AG who filed the motion, the AE is the AG.

It's tons of paperwork along with strict deadlines. fftobed:

MH sharing an opinion:wolf:

 

[Steely Dan]

This is NYS law as far as recording conversations goes;

http://www.rcfp.org/taping/states/newyork.html

New York

Intercepting or unlawfully engaging in wiretapping without the consent of one party is a felony. N.Y. Penal Law §§ 250.00, 250.05. Mechanical wiretapping is illegal under the statute only when the party whose wires are tapped is not a party involved in the conversation. People v. Gibson, 23 N.Y.2d 618 (N.Y. 1969). However, a party to the conversation may surreptitiously record a conversation. Id. In addition, those who talk in the presence of a non-participating third party may have no expectation of privacy with respect to statements overheard by the third party. People v. Kirsh, 176 A.D.2d. 652 (N.Y. App. Div. 1991).

These laws apply to conversations conducted over cellular or cordless phones. People v Fata, 159 N.Y.S.2d 348 (N.Y.App. Div. 1990).

A state court held that newspapers that published transcripts of an illegally recorded telephone conversation were subject to civil liability when the “newspapers knew they were dealing with recorded conversations between unconsenting parties.” Natoli v. Sullivan, 606 N.Y.S.2d 504 (N.Y. Sup. Ct. Oswego County 1993), aff’d, 616 N.Y.D.2d 318 (N.Y. App. Div. 1994).

Publication may also constitute the crime of “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25. A person is guilty of this crime when he divulges the contents of a private letter or communication knowing that it has been opened or read. N.Y. Penal Law § 250.25.

I'm assuming that this means that if I'm involved in a telephone conversation with someone I can record it because I know it's being recorded. The other person doesn't have to know. Please verify if I'm right or if I'm wrong. Thanks.

BTW, I live in NYS.

 

[AZlawyer]

I'm confused by the "Motion To Relinquish Jurisdiction" filed by the Attorney General in CASEY MARIE ANTHONY vs. STATE OF FLORIDA

And the "Order to Show Cause" due by 08/22/2011 (Notes: AA FILE A RESPONSE AND SHOW CAUSE ON OR BEFORE MONDAY, 8/22 WHY AE'S MOT RELINQ JURIS SHOULD NOT BE GRANTED. AA MAY FAX A COPY OF ITS REPONSE TO THE COURT AT 386-947-1562 BUT MUST ALSO FILE THE ORIGINAL W/ THE COURT. ATTYS SHALL ALSO EMAIL.)

5th DCA site: http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2011&p_casenumber=2357&psCourt=5&psSearchType=

Can you please explain these entries and what's going on? TIA!

I was just going to ask this too! Seems to be for the 4 conviction appeals?

Without seeing the documents, it's impossible to know for sure, but I agree with MH that it appears to be a motion to allow HHJP to rule on something-or-other even though the matter has been transferred to the appellate court (which normally he would not be permitted to do).

 

[Themis]

This is NYS law as far as recording conversations goes;

http://www.rcfp.org/taping/states/newyork.html

New York

Intercepting or unlawfully engaging in wiretapping without the consent of one party is a felony. N.Y. Penal Law §§ 250.00, 250.05. Mechanical wiretapping is illegal under the statute only when the party whose wires are tapped is not a party involved in the conversation. People v. Gibson, 23 N.Y.2d 618 (N.Y. 1969). However, a party to the conversation may surreptitiously record a conversation. Id. In addition, those who talk in the presence of a non-participating third party may have no expectation of privacy with respect to statements overheard by the third party. People v. Kirsh, 176 A.D.2d. 652 (N.Y. App. Div. 1991).

These laws apply to conversations conducted over cellular or cordless phones. People v Fata, 159 N.Y.S.2d 348 (N.Y.App. Div. 1990).

A state court held that newspapers that published transcripts of an illegally recorded telephone conversation were subject to civil liability when the “newspapers knew they were dealing with recorded conversations between unconsenting parties.” Natoli v. Sullivan, 606 N.Y.S.2d 504 (N.Y. Sup. Ct. Oswego County 1993), aff’d, 616 N.Y.D.2d 318 (N.Y. App. Div. 1994).

Publication may also constitute the crime of “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25. A person is guilty of this crime when he divulges the contents of a private letter or communication knowing that it has been opened or read. N.Y. Penal Law § 250.25.

I'm assuming that this means that if I'm involved in a telephone conversation with someone I can record it because I know it's being recorded. The other person doesn't have to know. Please verify if I'm right or if I'm wrong. Thanks.

BTW, I live in NYS.

As far as I can see, this question has no nexus (connection or relevance) to the case involving the disappearance and death of Caylee Anthony of Orlando, Florida. If you need legal advice about New York laws for your own legal interests, you should consult a lawyer licensed to practice law in the State of New York. Your question is beyond the scope of discussion on this forum.

 

[dani]

:dj: Attention, Ladies and Gentlemen! The academy is proud to announce that the 2011 winner of the prestigious "B.U.S.T.Y." :goldcrown: award is…, oh, I'm so nervous I can hardly open the envelope. The winner is…Miracles Happen! :loveyou::loveyou::loveyou:

(Best Use of Smilies This Year) :giggle: