People v. Graham

• Citation: 57 A.D.2d 478,394 N.Y.S.2d 982
• Parties: PEOPLE of the State of New York, Respondent, v. William GRAHAM, Appellant.
• Decision Date: 03 June 1977
• Court: New York Supreme Court Appellate Division

Page 982

394 N.Y.S.2d 982

57 A.D.2d 478

PEOPLE of the State of New York, Respondent, v. William GRAHAM, Appellant.

Supreme Court, Appellate Division, Fourth Department.

June 3, 1977.

Condon & Sedita, P. C., Buffalo, for appellant (Joseph V. Sedita, Buffalo, of counsel).

Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent (Judith Blake Manzella, Buffalo, of counsel).

Before MARSH, P. J., and MOULE, SIMONS, GOLDMAN and WITMER, JJ.

OPINION

WITMER, Justice.

The indictment of defendant charged him with bribery in the second degree and obstructing governmental administration. The court instructed the jury that they could find him guilty of giving unlawful gratuities as a lesser included offense of bribery in the second degree, and the jury convicted him thereof but found him not guilty of the two charges in the indictment. Although there was evidence on which the jury could find defendant guilty of giving unlawful gratuities and yet not guilty of bribery, he was not charged with the former, and so the conviction must be reversed. Possibly the court would have avoided the error of such charge had it not, before summations, committed the prior error of failing to advise counsel that it was planning to charge that the jury could find the defendant guilty of giving unlawful gratuities as a lesser included offense.

Defendant was a Captain in the Cheektowaga Police Department and Robert Mossman was a detective therein. In February, 1976 Mossman arrested one Anderson for the unlawful use of a stolen credit card and theft of services. There is evidence that two days later defendant called Mossman to his office and said that he had been asked by a friend to help Anderson; that he would talk with the judge and the district attorney about the case and, if Mossman "was willing to go along with it, there would be a suit of clothes in it for" Mossman. Mossman parried the proposition, saying, "Well, let's see what happens"; but he resented the implication of defendant's proposal. He contacted a fellow officer and also an investigator for the State Police; and later when he was called again to defendant's office about this matter, he had a tape recorder in operation with him. Defendant resumed his discussion with Mossman of how they could help Anderson avoid trial on the charges against him; and at one point he told Mossman that when he came into court he would be paid. On trial it was argued for defendant that by this statement he was only referring to the fact that the Town, Mossman's employer, would pay him for coming into court, which it would.

Defendant did contact the judge and district attorney. Giving evidence indicating that it was quite usual practice to reduce charges in a town court in cases of first offense, as this was against Anderson, the justice and district attorney testified that Anderson was properly permitted to plead guilty to two reduced charges of disorderly conduct, and was fined $50 on the one charge and was given an unconditional discharge on the other. On leaving court, Mossman walked with defenda to the latter's office, where defendant gave him a $100 bill. Mossman accepted it, because the State Trooper had told him to accept a payment from defendant if offered.

On this trial for bribery, defendant objected to the introduction of the tape recording of his conference with Mossman. No transcription of the tape had been made for introduction into evidence along with it. There was evidence that parts of it were inaudible, and so could not be transcribed. Mossman stated that he was sitting about 8 feet from defendant when the taped conversation took place. Mossman and his partner, Tehan, and others testified that they had listened to the tape and found that all of what Mossman said was audible and that all except a few words of what defendant said was audible. The court listened to the tape and ruled that it was admissible "on the grounds that the tape is the best evidence of the conversation, and that the material and relevant portions are substantially audible so as to enable the jury to attach whatever weight to the recorded evidence it deems necessary".

Defendant contends that the court committed reversible error in receiving the tape, especially without verified transcription along with it. He relies principally on People v. Sacchitella, 31 A.D.2d 180, 295 N.Y.S.2d 880; People v. Columbo, 24 A.D.2d 505, 261 N.Y.S.2d 836; and People v. Gucciardo, 77 Misc.2d 1049, 355 N.Y.S.2d 300. In Gucciardo, supra, at pp. 1050-1051, 355 N.Y.S.2d at p. 302, the court made a good statement of the law on the admissibility of a tape recording, as follows: "The credibility of the recording, its accuracy and completeness are left to the Trial Judge to determine as preliminary questions * * * If a recording is partly inaudible or unintelligible, the recording is nevertheless admissible unless those portions are so substantial as to render the recording as a whole inadmissible * * * Accordingly, a recording should be excluded when it is almost entirely inaudible or unintelligible (People v. Sacchitella, 31 A.D.2d 180, 295 N.Y.S.2d 880; People v. Velella, 28 Misc.2d 579, 216 N.Y.S.2d 488) * * * (W)here inaudible and unintelligible portions cannot be deemed so substantial as to render the whole untrustworthy, the admission of a recording, portions of which are either inaudible or unintelligible, is not prejudicial to defendants' rights".

Since all but a very few words on the tape are audible in this case and an adequate review of the record can be had by replaying the tape, it was not necessary that a verified transcript thereof be offered into evidence with it, and it was not error for the court to admit the tape into evidence (People v. Lubow, 29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331; People v. Mitchell, 40 A.D.2d 117, 338 N.Y.S.2d 313; and see "Admissibility of Inaudible Sound Recording, 57 A.L.R.3d 746).

Before the summations defense counsel sought to have the court advise counsel how it was going to charge the jury, and he asserted that the defense was prejudiced in not knowing at the time of summation what the court would charge, but the court did not advise counsel thereof. In its instructions to the jury the court, in addition to submitting the crimes of bribery in the second degree and obstructing governmental administration, charged that the jury could find defendant guilty of the crime of giving an unlawful gratuity as a lesser included offense. Defendant objected to this aspect of the charge and asked the court to withdraw it from the jury, but the court declined to do so.

The statutory requirement (CPL 300.10, subd. 3) is clear, that, "The court must specifically designate and submit, in accordance with the provisions of sections 300.30 and 300.40, those counts and offenses contained and charged in the indictment which the jury are to consider. Such determination must be made, and the parties informed thereof, prior to the summations " (emphasis added). Subdivision 1 of section 300.30 of the Criminal Procedure Law makes it equally clear that the above quoted section also refers to a "lesser included offense". By failing to obey this mandate of the statute, the court deprived defense counsel of the privilege of arguing to the jury the evidence as it related to such alleged lesser crime. It was patently prejudicial in view of the distinctions between the crimes of bribery in the second degree and giving unlawful gratuities, and it cannot be held to constitute harmless error (People v. Moody, 52 A.D.2d 959, 383 N.Y.S.2d 626; cf. People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410, which is clearly distinguishable upon its facts).

Defendant argues, moreover, that not only was it error for the court to fail to advise counsel of the nature of its proposed instructions to the jury, but the court erred as a matter of law in charging that giving unlawful gratuities is a lesser included crime of bribery in the second degree. We must, therefore, compare the statutory definitions. Section 200.00 of the Penal Law provides that, "A person is guilty of bribery in the second degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced". Section 200.30 of the Penal Law provides that, "A person is guilty of giving unlawful gratuities when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation". "Lesser included offense" means, "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense' " (CPL, § 1.20, subd. 37).

It is settled law that "if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense" (People v. Mussenden, 308 N.Y. 558, 561-562, 127 N.E.2d 551, 553). Thus, before the court may charge a "lesser included offense" it must be satisfied (1) that the offense in question meets the statutory definition of a lesser included offense of the crime charged in the...