People v. Arena

• Decision Date: 15 December 1978
• Citation: 65 A.D.2d 182,411 N.Y.S.2d 466
• Parties: PEOPLE of the State of New York, Respondent, v. Leo ARENA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 466

411 N.Y.S.2d 466

65 A.D.2d 182

PEOPLE of the State of New York, Respondent, v. Leo ARENA, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 15, 1978.

Peter C. Sulli, Sr., Rochester, for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester, for respondent (Sharon Stiller, Rochester, of counsel).

Before MARSH, P. J., and MOULE, SIMONS, HANCOCK and SCHNEPP, JJ.

HANCOCK, Justice:

This appeal presents the question whether the authenticating testimony of a participant in a conversation can, without additional proof, establish a sufficient foundation for the admission of a tape of the conversation. We hold that under the circumstances in this case such testimony is sufficient.

A jury has convicted defendant of attempted grand larceny by extortion and attempted coercion in connection with an effort to "shake down" Daniel Hartnett, the proprietor of a massage parlor. The main item of evidence against the defendant was a tape recording of a conversation on May 20, 1977 between Hartnett and the defendant. Hartnett testified that: 1) he was instructed in the use of the taping device by one of the detectives; 2) the tape machine was operating during the entire time that Arena was in his office; 3) he himself operated the device during the conversation with Arena and neither he nor anyone else manipulated the controls of the machine during the conversation; 4) he had listened to the entire tape on two occasions and that, based on his "recollection of the conversation with Mr. Arena on . . . May 20, 1977 at (his) office in the Renaissance Spa," the recording "fully and accurately reflect(ed) the entire contents of that conversation." Although perhaps not necessary, the prosecution elicited the following additional testimony from the witness which emphasized the significant points:

Q. Is there any portion of this tape which does not accurately reflect that conversation?

A. None.

Q. Is there any portion of your conversation with Mr. Arena that you recall conducting on May 20, 1977 which is omitted from the tape?

A. No.

In objecting to the admission of the tape and the typewritten transcript made from it, defendant did not challenge the authenticity or accuracy of either. Indeed, in his summation defendant's attorney all but conceded their accuracy and repeatedly requested the jurors to listen to the tape as many times as they pleased so that they could see that it was Hartnett and not Arena who was doing most of the talking and hear the tone of Arena's voice when he made certain statements.

The dissenters hold that because some additional proof to supplement Hartnett's testimony was not given, it was an abuse of discretion for the trial court to have admitted the tape in evidence. They recognize the well-established rule that the sufficiency of the foundation to be required for the admission of real evidence including tapes is a matter usually within the trial court's discretion (see United States v. Craig, 573 F.2d 455, 479 (7th Cir.); United States v. Haldeman, 181 U.S.App.D.C. 254, 332, 559 F.2d 31, 109, sub nom. Mitchell v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250; Brandow v. United States, 268 F.2d 559, 567 (9th Cir.); People v. Gucciardo, 77 Misc.2d 1049, 355 N.Y.S.2d 300). Drawing an analogy between the tape recordings and "fungible items such as drugs" or "chemical specimens, both subject to easy and material alteration", however, they would require the party offering the evidence to meet "a special burden of demonstrating that the evidence is unadulterated."

In our opinion the "fungible items" cases are not analogous. In People v. Julian (41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310) (involving various drugs), Amaro v. City of New York (40 N.Y.2d 30, 386 N.Y.S.2d 19, 351 N.E.2d 665) (involving a blood sample) and People v. Connelly (35 N.Y.2d 171, 359 N.Y.S.2d 266, 316 N.E.2d 706) (involving cocaine), the problem was one of establishing that the substance which had been delivered for analysis (i. e., the "green vegetable matter" or "white powder" in People v. Julian, supra, and People v. Connelly, supra; and the blood in Amaro v. City of New York, supra) was in fact a sample of the substance seized or purchased, or the blood taken. Because of the unremarkable qualities and the uniform appearance of the substances involved and the lack of any distinguishing characteristics, the authentication of a particular sample tested as the substance involved in the case could only have been accomplished by tracing the actual substance through a chain of custody from the undercover agent who purchased the drugs or the police officer who seized the drugs or the doctor who took the blood to the person who performed the tests in the laboratory. The authentication of a tape recording of a conversation like the authentication of a photograph of an accident scene presents no such problem. Both the recording and the photograph are reproductions of actual events, sounds or scenes, which someone has witnessed and can remember. The identifying characteristics of the tape are the voices of the participants, the peculiarities of their speech, and the content of the conversation recorded. The photograph depicts the contours and details of the scene which the witness has observed. Through the recollection and recognition of these identifying and, for the most part unique, features the witness can state whether the recording or the photograph accurately reproduces what was to be heard or seen. To be sure, both the tape recording and the photograph are susceptible to alteration but the recollection of the witness who remembers all that was said and who said it or knows what the scene looked like is protection against it. ¹

The unequivocal and positive testimony of the participant Hartnett that the tape was a complete and accurate recording of the entire conversation constituted prima facie proof that the tape was trustworthy and not "adulterated." Where, as here, no suggestion was ever made that the tape was incomplete or inaccurate in any particular, or that it had been altered, we think, contrary to the view of the dissent, that the minimal standards of admissibility were satisfied and that the question of whether or not to receive it was one for the trial justice in the exercise of his sound discretion.

Although it is well established that the admissibility of a sound recording is a discretionary matter, the precedents in this state have not set forth specific guidelines to assist the court (see generally, People v. Lubow, 29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331; People v. Dinan, 15 A.D.2d 786, 224 N.Y.S.2d 624, aff'd 11 N.Y.2d 350, 229 N.Y.S.2d 406; People v. Feld, 305 N.Y. 322, 113 N.E.2d 440; People v. Goldfeld, 60 A.D.2d 1, 9, 400 N.Y.S.2d 229; Matter of Anonymous, 286 App.Div. 161, 143 N.Y.S.2d 90, lv. to app. den. 286 A.D. 968, 146 N.Y.S.2d 477; People v. Hornbeck, 277 App.Div. 1136, 101 N.Y.S.2d 182; People v. Miller, 270 App.Div. 107, 58 N.Y.S.2d 525; People v. Gucciardo, 77 Misc.2d 1049, 355 N.Y.S.2d 300, supra; People v. Velella, 28 Misc.2d 579, 216 N.Y.S.2d 488; Frank v. Cossitt Cement Products, Inc., 197 Misc. 670, 97 N.Y.S.2d 337; cf. Boyarsky v. Zimmerman Corp., 240 App.Div. 361, 270 N.Y.S. 134, involving the admission of moving pictures; cf. People v. Higgins, 89 Misc.2d 913, 918, 392 N.Y.S.2d 800, 803, holding that a video tape is admissible where a proper foundation is laid which shows that the tape is a true, fair and accurate representation of the events, people or scene depicted and which may be provided by the testimony of a photographer, technician or engineer, or by anyone who observed the events depicted). The general rule is stated in 21 N.Y.Jur., Evidence § 371: "The reproduction of the sounds of an original event, recorded on a wire recorder, if relevant, competent from the standpoint of the manner in which the recording was obtained, and verified as a true representation is admissible." (Footnotes omitted).

While the established federal rule is that the admissibility of sound recordings is discretionary (see, e. g., United States v. Craig, 573 F.2d 455 (7th Cir.), supra; United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31, supra; Brandow v. United States, 268 F.2d 559 (9th Cir.), supra), federal courts have required that "the government 'produce clear and convincing evidence of authenticity and accuracy' as a foundation for the admission of such recordings" (United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.), cert. denied, sub nom. Sansone v. United States, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320, quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert. den., 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465). However, the cases do not establish "inflexible criteria applicable to all cases." (United States v. Fuentes, supra at 532.) ² Proof of authenticity and accuracy sufficient for admission of taped recordings of conversations has been supplied by the testimony of a participant to the conversation in conjunction with that of an expert who testified that in his opinion the tapes had not been altered (see United States v. Craig, 573 F.2d 455 (7th Cir.), supra); by the testimony of the undercover agent who observed the conversation and who made the recording (see United States v. McMillan, 508 F.2d 101 (8th Cir.), cert. den. 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782); by the testimony of a participant in conjunction with that of the police officer who retrieved the tape and listened to it the day after it was made (see United States v. Buzzard, 540 F.2d 1383 (10th Cir.), cert. den. 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790); and by that of a participant alone (see Brandow v. United States, 268 F.2d 559 (9th Cir.), supra; Monroe v. United States, 98 U.S.App.D.C. 228, 234 F.2d 49). The federal decisions indicate that a determination of admissibility should, for the most part, be based on an examination of all of...