Secret Recording of BMHA Commissioner’s Racist Remarks Is Legal, Attorneys Say

Numerous media reports have detailed the taped conversation in which Joseph Mascia made repeated racial slurs about local African-American politicians, including Mayor Byron Brown, Buffalo Common Council President Darius Pridgen, and Assemblywoman Crystal Peoples-Stokes. Mr. Mascia, a commissioner of the Buffalo Municipal Housing Authority and candidate for the Buffalo Common Council’s Fillmore District seat, claims the recording was made illegally because Mr. Mascia was not made aware he was being recorded.

The Buffalo News asked Paul Cambria, a noted Buffalo-based criminal defense attorney, for his insights for an article titled, “Secret One-Party Recording Legal in Mascia Episode, Experts Say.” The article is available at the Buffalo News’s website.

Maybe sleazy but still legal

The recording was made covertly by Paul Christopher, who runs a local janitorial company where Mr. Mascia worked in the past. Many people, including Mr. Mascia, think Mr. Christopher’s actions were illegal. But Mr. Cambria and another well-known criminal defense attorney, Joseph LaTona, told the Buffalo News that in New York State, there is nothing illegal about what Mr. Christopher did. This is because New York is one of 38 states that do not bar “one-party taping.”

“Some people may think it’s sleazy, but it’s legal,” said Mr. Cambria Jr. “Personally, I think it was sleazy on both ends—for Mascia to say such things and for the other guy to keep baiting him. But making the tape is legal.”

Differing opinions on legality

Mr. Mascia is clearly heard using a well-known and reviled racial epithet at least eight times in the recording, according to the Buffalo News. The recording includes Mr. Christopher asking Mr. Mascia for his opinions of Mr. Brown, Mr. Pridgen, Ms. Peoples-Stokes, and other prominent black politicians. Mr. Mascia was also recorded complaining that black politicians are trying to take total control of Buffalo.

The Buffalo News reports that Mr. Mascia, who has apologized for his remarks, says his understanding of the law is that Mr. Christopher’s actions were illegal and that all parties involved in a conversation must consent before the conversation can be legally recorded.

This is not true, though, according to Mr. Cambria and Mr. LaTona, who both have decades of experience working cases involving one-party taping. “In Pennsylvania or California, it’s a crime, but in New York State, you can do it legally,” Mr. Cambria said.

Mr. Mascia told the Buffalo News he plans to ask the state Attorney General’s Office for a legal opinion on the matter.

About Paul Cambria

The chair of Lipsitz Green’s Criminal Defense Trials and Appeals Practice Area, Mr. Cambria also advises clients on First Amendment law and other constitutional issues, zoning and land use, antitrust, and professional licensing defense. His practice is nationwide, and he divides his time between the firm’s offices in Buffalo and Los Angeles.