People v. Byrnes

• Citation: 352 N.Y.S.2d 913,308 N.E.2d 435,33 N.Y.2d 343
• Parties: , 308 N.E.2d 435 The PEOPLE of the State of New York, Respondent, v. Thomas Francis BYRNES, Appellant.
• Decision Date: 14 February 1974
• Court: New York Court of Appeals Court of Appeals

Page 913

352 N.Y.S.2d 913

33 N.Y.2d 343, 308 N.E.2d 435

The PEOPLE of the State of New York, Respondent, v. Thomas Francis BYRNES, Appellant.

Court of Appeals of New York.

Feb. 14, 1974.

Matthew Muraskin and James J. McDonough, Mineola, for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

JASEN, Judge.

Following a jury trial in Nassau County Court, the defendant Thomas Byrnes was convicted of rape, sodomy and incest. His conviction was unanimously affirmed by the Appellate Division and leave to appeal was granted by a Judge of this court.

At the trial, the complainant, defendant's daughter, then 11 years of age, testified that on two occasions, in November, 1970 and March, 1971, she and her father went to the home of one Gene Abrams, where Abrams photographed them in the nude engaging in various sexual acts. A series of photographs, produced from negatives seized at the Abrams home pursuant to a warrant and admitted into evidence over defendant's objection, variously depicted an adult male and a young female engaged in acts of intercourse and sodomy. There was unimpeached testimony by a photographic expert that neither the negatives nor the positive prints produced therefrom had been altered or 'doctored' in any manner. Defense counsel also stipulated that the photographic prints accurately depicted the images on the negatives. The complainant identified herself and her father in 10 of the photographs. She further testified that the photographs fairly represented what occurred at the Abrams' home on these occasions, although she could not recall on which occasion, November, 1970 or March, 1971, each of the depicted acts occurred.

Marie Byrnes, complainant's mother and wife of the defendant, testified that the individuals portrayed in six of the photographs were her daughter and her husband. In seven other photographs, she identified either her husband or her daughter. In several of the photographs in which she identified only her daughter, she testified that the male, whose facial features were not visible, wore a sleeveless knit shirt of the type in evidence and which she recognized as belonging to her husband.

It is urged that the objective evidence--the photographs--authenticated in part by the complainant, are insufficient corroboration in law for her testimony as to the occurrence of the acts of rape, sodomy and incest.

Section 130.15 of the Penal Law (L.1965, ch. 1030), Consol.Laws, c. 40, then in effect, provided: 'A person shall not be convicted of any offense defined in this article, or of an attempt to commit the same, solely on the uncorroborated testimony of the alleged victim. This section shall not apply to the offense of sexual abuse in the third degree.' Rape in the first degree (§ 130.35) and sodomy in the first degree (§ 130.50) both are offenses defined in article 130 and subject to the corroboration requirement.

Similarly, section 255.30 imposes a requirement of corroboration for conviction of incest: 'A person shall not be convicted of adultery or incest or of an attempt to commit either such crime upon the uncorroborated testimony of the other party to the adulterous or incestuous act or attempted act.' In a long line of cases, this court has held that the corroboration requirement extends to every material fact of the offense, including the identity of the defendant as the perpetrator. (E.g., People v. Linzy, 31 N.Y.2d 99, 335 N.Y.S.2d 45, 286 N.E.2d 440; People v. Masse, 5 N.Y.2d 217, 182 N.Y.S.2d 821, 156 N.E.2d 452; People v. Anthony, 293 N.Y. 649, 59 N.E.2d 637; People v. Downs, 236 N.Y. 306, 140 N.E. 706; People v. Page, 162 N.Y. 272, 56 N.E. 750; People v. Terwilliger, 74 Hun 310, 26 N.Y.S. 674, affd. 142 N.Y. 629, 37 N.E. 565; People v. Plath, 100 N.Y. 590, 3 N.E. 790; see, also, People v. Radunovic, 21 N.Y.2d 186, 287 N.Y.S.2d 33, 234 N.E.2d 212; People v. English, 16 N.Y.2d 719, 262 N.Y.S.2d 104, 209 N.E.2d 722; People v. Colon, 16 N.Y.2d 988, 265 N.Y.S.2d 653, 212 N.E.2d 891.)

Preliminarily, it should be observed that the photographs were sufficiently authenticated and were properly admitted into evidence. The complainant, a competent witness possessing knowledge of the matter, identified the subjects and verified that the photographs accurately represented the subject matter depicted. Rarely is it required that the identity and accuracy of a photograph be proved by the photographer. (Stiasny v. Metropolitan St. Ry. Co., 58 App.Div. 172, 68 N.Y.S. 694, affd. 172 N.Y. 656, 65 N.E. 1122; McCormick, Evidence (2d ed.), § 214; Ann., Photographs--Authentication, 9 A.L.R.2d 899, 910--915; 21 N.Y.Jur., Evidence, § 365.) Rather, since the ultimate object of the authentication requirement is to insure the accuracy of the photograph sought to be admitted into evidence, any person having the requisite knowledge of the facts may verify. (Alberti v. New York, Lake Erie & Western R.R. Co., 118 N.Y. 77, 23 N.E. 35; Fisch, New York Evidence, § 142, p. 76; Ann., Photographs--Authentication, 9 A.L.R.2d 899, 912--913; 21 N.Y.Jur., Evidence, § 365.)

It is yet another question, however, whether corroborative evidence, the foundation for which was supplied in part, at least, by the complainant, is sufficient in law to sustain the conviction. Were the authenticating proof supplied solely by the complainant, the answer would have to be no. To hold otherwise would impermissibly allow the complainant to corroborate her own testimony (see People v. Linzy, 31 N.Y.2d 99, 101, 335 N.Y.S.2d 45, 46, 286 N.E.2d 440, 441, Supra; Peery v. State, 163 Neb. 628, 80 N.W.2d 699; Ann., Rape--Corroboration of Prosecutrix, 60 A.L.R. 1124, 1151--1152) and, so to speak, the prosecution to lift itself up by its own bootstraps. (Cf. People v. Bowley, 59 Cal.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591.)

It is clear, however, that these photographs were not admitted into evidence solely upon the complainant's foundation testimony. There was testimony that the negatives from which the positive prints were made had been seized at the Abrams' home. There was unimpeached testimony by a photographic expert that the negatives had not been altered in any manner and that the prints produced therefrom were accurate reproductions. And, finally, Marie Byrnes identified the subjects as her daughter, the complainant, and her husband, the defendant. Entirely lacking is any evidence or suggestion that the photographs do not depict what they purport to show. We conclude, therefore, that the source of the authentication was sufficiently independent of the complainant's testimony and that the corroborative value of the photographs was properly submitted to the jury. (Cf. People v. Bowley, 59 Cal.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591, Supra; People v. Samuels, 250 Cal.App.2d 501, 58 Cal.Rptr. 439; People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792; cf., also, People v. Mehaffey, 32 Cal.2d 535, 197 P.2d 12, cert. den. 335 U.S. 900, 69 S.Ct. 399, 93 L.Ed. 435; People v. Mitman, 122 Cal.App.2d 490, 495, 265 P.2d 105, cert. den. 347 U.S. 991, 74 S.Ct. 854, 98 L.Ed. 1125; People v. Batsford, 91 Cal.App.2d 607, 205 P.2d 731.)

We would only add that, although the People did not proceed on this theory, no reason is discerned why, in a proper case, a photograph may not constitute independent probative evidence of what it shows. (See People v. Perez, 300 N.Y. 208, 216--217, 90 N.E.2d 40, 44, cert. den. 338 U.S. 952, 70 S.Ct. 483, 94 L.Ed. 588 (photograph of accused taken by newspaper photographer immediately after he confessed held to be evidence, which, by itself, might have persuaded the jury that claimed assault and abuse were without substance); People v. Webster, 139 N.Y. 73, 83, 34 N.E. 730, 733 (photograph admitted to show physique of deceased where defendant pleaded self-defense); Maresca v. Lake Motors, 32 A.D.2d 533, 534, 299 N.Y.S.2d 727, 729, affd. 25 N.Y.2d 716, 307 N.Y.S.2d 222, 255 N.E.2d 562; People v. Hausen, i0 Misc.2d 113, 114, 193 N.Y.S.2d 61, 62; see, also, People v. Bowley, 59 Cal.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591, Supra; People v. Samuels, 250 Cal.App.2d 501, 58 Cal.Rptr. 439, Supra; People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792, People v. Mitman, 122 Cal.App.2d 490, 265 P.2d 105, Supra; People v. Withers, 347 S.W.2d 146, 149 (Mo.); Gardner, The Camera Goes to Court, 24 North Carolina L.Rev. 233.) Authentication will always be required. But where no witnesses are available who have viewed the subject matter portrayed, valid alternative grounds may exist for authenticating the photograph and admitting it into evidence, such as testimony, especially that by an expert, tending to establish that the photograph truly and accurately represents what was before the camera. (See People v. Doggett, Supra; People v. Samuels, Supra; see, also, People v. Bowley, Supra; McCormick, Evidence (2d ed.), § 214.) In the case before us, a fair conclusion is that the foundation testimony, even excluding that of the complainant, sufficiently authenticated the photographs by showing that they accurately depict what they purport to show, and that in themselves, the photographs were probative evidence of the crimes charged.

The Trial Judge excluded the defendant from the courtroom during the testimony of the complaining witness because of what he characterized as deliberate disruptive behavior by the defendant calculated to intimidate the witness. The defendant contends that the exclusion was an accommodation to the witness and an impermissible punishment for his prior disruptive behavior, all in violation of his right to confront the witnesses against him.

While the right of an accused to be present at every stage of a trial is guaranteed by Constitution (U.S.Const., 6th, 14th, Amdts.; see Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353) and statute (CPL 260.20, Consol.Laws, c. 11--A), the right may be lost where the defendant engages in misconduct so...