People v. Sacchitella

• Decision Date: 19 December 1968
• Citation: 31 A.D.2d 180,295 N.Y.S.2d 880
• Parties: The PEOPLE of the State of New York, Respondent, v. Eugene SACCHITELLA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 880

295 N.Y.S.2d 880

31 A.D.2d 180

The PEOPLE of the State of New York, Respondent, v. Eugene SACCHITELLA, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 19, 1968.

Joseph E. Brill, New York City, for appellant.

Alan F. Scribner, New York City, of counsel (Michael R. Juviler, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), for respondent.

Before STEVENS, J. P. , and CAPOZZOLI, TILZER, RABIN and McNALLY, JJ.

PER CURIAM:

This is an appeal from a judgment convicting defendant, after trial, of the crimes of feloniously selling of narcotics, felonious possession of a narcotic drug and felonious possession of a narcotic drug, with an intent to sell.

It can be argued that there was sufficient evidence adduced by the People to warrant a verdict of guilty. However, we are of the opinion that the admission into evidence of the tape which purportedly contains conversations held between the People's main witness, a professional police informer, and the defendant, was prejudicial error. This informer testified that he had been earning his livelihood in that capacity for the past three or four years, that he earned over-all about $14,000 and that he generally was paid at the rate of about $300 by the authorities for each case. It also appears that this informer has a long criminal record, including a number of felony convictions.

The informer testified that, prior to and on June 7th, June 14th and June 19th, 1967, he conversed with the defendant at the latter's pharmacy. On the three enumerated dates the informer was equipped with a concealed electric transmitter, which the police had placed on him for the purpose of recording the conversations that he had with the defendant. These conversations were allegedly recorded by the police who remained in a car outside of the defendant's pharmacy. The detectives' vehicle was equipped with a radio which picked up signals from the transmitter worn by the informer. By use of a microphone the conversations were allegedly channeled into a tape recorder located in the vehicle. All of the conversations were recorded on a single tape which, for some unexplained reason, was kept in the arresting officer's home for about ten months, before it was delivered to the District Attorney. During this time said detective made a duplicate of the recording which was allegedly indistinguishable from the original. No identifying mark was placed on either tape.

In addition, the equipment used, the transmitter, receiver and recorder, were the private property of the arresting officer. The equipment had been personally purchased by him and was not issued or authorized by the Police Department or by the District Attorney. The voices on the tapes were never identified during the trial, and the official court reporter was unable to and did not transcribe the recording on the several occasions it was heard by the jury.

We have listened to the tape and we found it to be thoroughly and completely inaudible throughout, except for some brief excerpts of the June 7th conversation which, while intelligible, were completely innocuous and without probative value in the case. The law is clear that a recording must be rejected if it is so inaudible and indistinct that a jury must speculate as to the contents thereof. (Ann. 58 A.L.R.2d 1028; People v. Velella, 28 Misc.2d 579, 216 N.Y.S.2d 488; State v. Driver, 38 N.J. 255, 183 A.2d 655; Hammers v. State, (Okl.Crim.) 337 P.2d 1097 (not officially reported); People v. Stephens, 117 Cal.App.2d 653, ...