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Asked in Criminal Law for New York

Q: I went under iv sedation and had my phone recording audio only the whole operation. Was this legal?only i knew. In NY.

I just need to know if it was legal for me to audio record on my phone in my pocket without the dentist knowing while I was put under iv sedation and they did the procedure. After listening to the recordingI found them discussing things about me that were extremely innapropriate. Was it legal for me to do this without there consent or knowledge.

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2 Lawyer Answers
Andrew M. Stengel
Andrew M. Stengel
Answered
  • Criminal Law Lawyer
  • New York, NY
  • Licensed in New York

A: New York is a one-party consent state. Here is a helpful guide: http://www.dmlp.org/legal-guide/new-york-recording-law.

Aubrey Claudius Galloway
Aubrey Claudius Galloway
Answered
  • Criminal Law Lawyer
  • Scarsdale, NY
  • Licensed in New York

A: Criminally you may be guilty of violating § 250.05 by committing the offense of Eavesdropping.

The offense is defined as follows: "A person is guilty of eavesdropping when he or she unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication."

(Eavesdropping is a class E felony; a serious offense).

In your case, the district attorney would likely state that you violated the section by "mechanical overhearing of a conversation".

To that end, another particular (related) statute (250.00) lays out several different means of eavesdropping with definitions as follows:

Sub paragraph 2 states, '"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 (unconscious counts) thereat, by means of any instrument, device or equipment.'

The chances of you actually getting arrested and charged with this are extraordinarily slim, but in the context of a civil suit it would be difficult to get this recording into evidence.

I hope this answer helps you,

Aubrey C. Galloway III, Esq

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