People v. Smith

• Decision Date: 22 April 1982
• Citation: People v. Smith, 450 N.Y.S.2d 57, 86 A.D.2d 251 (N.Y. App. Div. 1982)
• Parties: The PEOPLE of the State of New York, Respondent, v. Ulysses SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 57

450 N.Y.S.2d 57

86 A.D.2d 251

The PEOPLE of the State of New York, Respondent, v. Ulysses SMITH, Appellant.

Supreme Court, Appellate Division Third Department.

April 22, 1982.

W. Dennis Duggan, Albany, for appellant.

Sol Greenberg, Dist. Atty., Albany (Ilene R. Bergman, Albany, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, CASEY, MIKOLL and LEVINE, JJ.

OPINION FOR AFFIRMANCE

LEVINE, Justice.

The two criminal sales of a controlled substance of which defendant stands convicted both occurred on July 2, 1979. Each sale was made to a police informant "wired for sound" by the police, who also undertook to witness the transaction by visual surveillance. The record discloses that although defendant and the informer were observed by the police when the first sale took place, the electronic monitoring device failed to fully record the voices of the participants. The monitoring device picked up the entire conversation during the second sale, but the officers lost direct visual contact at the time of that transaction. These evidentiary gaps, however, were filled by the testimony of the informer as to defendant's participation in the sales and by the identification of defendant's voice by the monitoring police officer, each sharply attacked by the defense. To further bolster its case, the prosecution sought and obtained a direction from the court that defendant exhibit his voice to the jury for comparison with the voice on the tapes. It is this ruling and direction to defendant which forms his principal point on appeal. Relying onPeople v. Giglio, 74 A.D.2d 348, 428 N.Y.S.2d 27, defendant contends that requiring him to furnish an exemplar of his voice without notice, a formal application for a court order by the prosecution, and a hearing before the trial, violated his constitutional rights and the policy of the State as expressed in the Criminal Procedure Law's provisions enabling a prosecutor to obtain pretrial discovery of identification evidence (CPL 240.40; 240.90, subd. 1).

People v. Giglio involved an appeal from a contempt conviction based upon the defendant's refusal to obey a court order to furnish a recorded exemplar of his voice during a prior criminal trial. The contempt conviction was reversed on the ground that the trial court's order to furnish the voice exemplar without pretrial notice and a hearing violated defendant's rights to procedural due process. Giglio is somewhat distinguishable from the instant case inasmuch as it deals with the prosecution's attempt to obtain a recorded sample of a defendant's voice for introduction at the trial without employing the pretrial procedures available for obtaining that evidence. However, to the extent that Giglio stands for the proposition that a defendant is constitutionally entitled to prior notice, formal application, and a hearing before he may be compelled to exhibit his voice to a criminal trial jury, we respectfully decline to follow its authority.

We begin with the now well-established principle that a person's voice, in contrast to the content of what is said, is merely an identifying physical characteristic, similar to one's physical appearance, handwriting, fingerprints, or sample of one's blood or hair, and that compelling a criminal defendant to speak solely for the purpose of physical identification of his voice (precisely as used here) does not violate the privilege against self incrimination (United States v. Dionisio, 410 U.S. 1, 6-7, 93 S.Ct. 764, 767-68, 35 L.Ed.2d 67; Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 1929-30, 18 L.Ed.2d 1149). However, since all such evidence of identifying physical characteristics are thus deemed to be physical evidence, obtaining them from and admitting them as evidence against an accused in a criminal proceeding are subject to the Fourth Amendment's prohibition against unreasonable searches and seizures (United States v. Dionisio, supra, 410 U.S. at p. 8, 93 S.Ct. at 768). Two Fourth Amendment issues are presented in such cases: the first concerns the right to exercise control (seizure) of the person in order to obtain the evidence from him, and the second concerns the right to obtain the specific identifying evidence itself (United States v. Dionisio, supra; Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908). Regarding the second issue, Dionisio establishes that seizure of a voice exemplar "does not involve the 'severe, though brief, intrusion upon cherished personal security' ", or any "intrusion into the body", and, therefore, like the seizure of fingerprints or handwriting, does not itself impinge upon any interest protected by the Fourth Amendment (410 U.S. 1, 14-15, 93 S.Ct. 764, 771-72, 35 L.Ed.2d 67). Regarding the first issue, the validity of the "seizure" of defendant's person for purposes of obtaining a sample of his voice at the trial was satisfied here by his arrest, indictment, and presence in court. Lawful custody, even on an unrelated charge, is sufficient to justify a seizure of the defendant's person to obtain physically identifying evidence (United States v. Sechrist, 7th Cir., 640 F.2d 81; United States v. Sanders, 5th Cir., 477 F.2d 112, cert. den. 414 U.S. 870, 94 S.Ct. 88, 38 L.Ed.2d 88).

The absence of any infringement of defendant's Fourth or Fifth Amendment rights should be dispositive of defendant's contention that being forced to utter words, in the absence of notice and a hearing, constituted a denial of procedural due process. Procedural due process does not apply in the abstract to any untoward or adverse effects visited upon an individual by the State. There must be an identified and valid liberty or property interest that is endangered (Meachum v. Fano, 427 U.S. 215, 223-224, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451; Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548). Defendant has not identified any liberty interest which was at stake in being forced to exhibit his voice to the jury, apart from those under the Fourth and Fifth Amendments which we have concluded do not apply here. ^*...