People v. Lynes

• Citation: 49 N.Y.2d 286,401 N.E.2d 405,425 N.Y.S.2d 295
• Parties: , 401 N.E.2d 405 The PEOPLE of the State of New York, Respondent, v. Julius LYNES, Appellant.
• Decision Date: 15 January 1980
• Court: New York Court of Appeals

Page 295

425 N.Y.S.2d 295

49 N.Y.2d 286, 401 N.E.2d 405

The PEOPLE of the State of New York, Respondent, v. Julius LYNES, Appellant.

Court of Appeals of New York.

Jan. 15, 1980.

Robert J. Hawley, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Bruce Allen and Jerrold L. Neugarten, New York City, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

Defendant Julius Lynes was convicted, after a jury trial, of rape in the first degree, sodomy in the first degree, robbery in the first degree and burglary in the first degree. His conviction was affirmed by the Appellate Division. The issues on which the present appeal turns are the admissibility at trial of (1) a telephone conversation between a police detective and a caller who identified himself as the defendant and (2) oral statements made to another police officer by the defendant purportedly without first having been advised of his constitutional rights. For the reasons which follow, we hold both were properly received in evidence.

Police attention in this case was directed at defendant after the complainant, happening to observe him with a group of young men on a congested street in the Harlem section of Manhattan, recognized him as her assailant. When the defendant ran into a nearby tenement house, other people who had been standing with him told the complainant that the man was nicknamed Speedy. Acting on her relay of this information to the police, a detective, Donald Longo, repaired to the building into which the man had disappeared, where, in the course of his inquiries of tenants, he came upon a man who identified himself as Speedy's brother and provided the information that defendant's formal name was Julius Lynes. However, the man denied knowing where Speedy was at the time and, when he asked why the detective was seeking his brother, was advised that it was in connection with the investigation of an old warrant. Before departing, Longo requested that Speedy telephone him and, for that purpose, left with the brother a slip of paper bearing the detective's name and telephone number at the Manhattan Sex Crimes Squad. This sets the stage for the call which gives rise to the first of the two evidentiary points with which we treat here.

For, only hours later, Longo picked up a telephone receiver at the other end of which was an unfamiliar male voice that asked for him by name. According to the record, the detective, having then inquired who was calling, received the response, "Speedy Julius Lynes" and then, "What are you looking for me for?" In reply, the detective said, "Your knife was found in an apartment", to which the voice was then heard to say "Oh no, oh no". When the detective thereupon asked if the man who had identified himself as Julius Lynes would come in and talk to the police, the caller refused, saying "you are going to have to find me" and then hung up. It is this conversation which was introduced at trial over the defense's vigorous objection that Longo admittedly was unfamiliar with the voice and therefore could not personally identify it as that of the defendant. The trial court's ruling was based generally on the rationale that other circumstances provided sufficient corroboration of the identity of the caller.

Prefatory to focusing on the question so raised, we note that the problem was fundamentally one of authentication, i. e., not merely whether the sound of the voice was recognizable as that of the defendant, but, more broadly, whether a sufficient foundation had been laid to permit a finding that the conversation was one with the party against whom it was offered. Putting the issue another way, in this case was the proof such that a jury could find that defendant was indeed the caller? (See People v. Dunbar Contr. Co., 215 N.Y. 416, 422, 109 N.E. 554, 555 (Cardozo, J.); Carbo v. United States, 9 Cir., 314 F.2d 718, 743.)

The question of authentication, of course, presents no great legal difficulty when the witness testifies that he recognizes the voice of the caller, and that is irrespective of whether the familiarity was acquired before or after the conversation (People v. Dunbar Contr. Co., supra, p. 422, 109 N.E. p. 555; People v. Strollo, 191 N.Y. 42, 61, 83 N.E. 573, 580). At the opposite end, it goes without saying that, without more, a mere self-serving statement of identity by a caller whose voice is unknown to the listener is not enough to permit it to go in (Murphy v. Jack, 142 N.Y. 215, 36 N.E. 882; 7 Wigmore, Evidence (Chadbourn rev. ed.), § 2155, p. 760). But that defect need not be fatal where alternative indices of reliability are to be found in surrounding facts and circumstances (see People v. McKane, 143 N.Y. 455, 38 N.E. 950; Van Riper v. United States, 2 Cir., 13 F.2d 961, 968, cert. den. sub nom. Ackerson v. United States, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848; Ann., 79 A.L.R.3d 79, 154 et seq.).

Thus, in part on the theory that the customary mode of operation of telephone users provides some assurance of reliability, in some instances the placing of a call to a number listed in a directory or other similarly responsible index of subscribers, coupled with an unforced acknowledgment by the one answering that he or she is the one so listed, has been held to constitute an adequate showing (see, e. g., Mankes v. Fishman, 163 App.Div. 789, 149 N.Y.S. 228; Van Riper v. United States, supra ). In other cases, the substance of the conversation itself has furnished confirmation of the caller's identity, as, for example, when subsequent events indicated that the party whose identity is sought to be established had to have been a conversant in the telephone talk (see Ottida, Inc. v. Harriman Nat. Bank & Trust Co. of City of N. Y., 260 App.Div. 1008, 24 N.Y.S.2d 63; United States v. Frankel, 2 Cir., 65 F.2d 285, 286-287) or when the caller makes reference to facts of which he alone is likely to have knowledge (see Levine & Co. v. Wolf's Package Depot, 29 Misc.2d 1085, 1088, 138 N.Y.S.2d 427, 431; Dege v. United States, 308 F.2d 534; State v. Bassano, 67 N.J.Super. 526, 171 A.2d 108). From all this emerges the rule that, while in each case the issue is one to be decided upon its own peculiar facts, in the first instance the Judge who presides over the trial must determine that the proffered proof permits the drawing of inferences which make it improbable that the caller's voice belongs to anyone other than the purported caller (see United States v. Lo Bue, 180 F.Supp. 955, 956-957; see, generally, Comment, 11 N.C.L.Rev. 344).

So measured, it was not error for the court to overrule the objection. The call was made to the detective after he had made a specific request that the defendant call and had left his name and telephone number for that very purpose with a man purporting to be defendant's brother. The promptness of the call within a few hours of this invitation can be said to impart a quality of reflexiveness that tends to undermine the chance that the invitation and the response are connected by only a post hoc ergo propter hoc rationalization (see People v. Conway, 3 Ill.App.3d 69, 278 N.E.2d 852; People v. Kroeger, 61 Cal.2d 236, 37 Cal.Rptr. 593, 390 P.2d 369)....