People v. Arena , 411 N.Y.S.2d 466 ( 1978 )

OPINION OF THE COURT

Hancock, Jr., J.

The question presented is whether the authenticating testimony of a participant in a conversation can, without additional proof, establish a sufficient foundation for the admission of a tape of the conversation. We hold that under the circumstances in this case such testimony is sufficient.

A jury has convicted defendant, Leo Arena, of attempted grand larceny by extortion and attempted coercion in connection with an effort to "shake down” Daniel Hartnett, the proprietor of a massage parlor. The main item of evidence against the defendant was a tape recording of a conversation on May 20, 1977 between Hartnett and the defendant. Hart-nett testified that: (1) he was instructed in the use of the taping device by a detective; (2) the tape machine was operating during the entire time that Arena was in his office; (3) he himself operated the device during the conversation with Arena and neither he nor anyone else manipulated the controls of the machine during the conversation; (4) he had listened to the entire tape on two occasions and that, based on his "recollection of the conversation with Mr. Arena on * * * May 20, 1977 at [his] office in the Renaissance Spa,” the recording "fully and accurately reflected] the entire contents of that conversation.” Although perhaps not necessary, the prosecution elicited the following additional testimony from the witness which emphasized the significant points:

"Q. Is there any portion of this tape which does not accurately reflect that conversation?

"A. None.

"Q. Is there any portion of your conversation with Mr. Arena that you recall conducting on May 20, 1977 which is omitted from the tape?

"A. No.”

In objecting to the admission of the tape and the typewritten transcript made from it, defendant did not challenge the authenticity or accuracy of either. Indeed, in his summation defendant’s attorney all but conceded their accuracy and repeatedly requested the jurors to listen to the tape as many times as they pleased so that they would perceive that it was Hartnett and not Arena who was doing most of the talking and hear the tone of Arena’s voice when he made certain statements.

The dissenters would hold that because some additional proof to supplement Hartnett’s testimony was not given, it was an abuse of discretion for the trial court to have admitted the tape in evidence. They recognize the well-established rule that the sufficiency of the foundation to be required for the admission of real evidence including tapes is a matter usually within the trial court’s discretion (see United States v Craig, 573 F2d 455, 479; United States v Haldeman, 559 F2d 31, 109, cert den sub nom. Mitchell v United States, 431 US 933; Brandow v United States, 268 F2d 559, 567; People v Gucciardo, 77 Misc 2d 1049). Drawing an analogy between the tape recordings and "fungible items such as drugs” or "chemical specimens, both subject to easy and material alteration”, however, they would require the party offering the evidence to meet "a special burden of demonstrating that the evidence is unadulterated.”

In our opinion the "fungible items” cases are not analogous. In People v Julian (41 NY2d 340 [involving various drugs]), Amaro v City of New York (40 NY2d 30 [involving a blood sample]) and People v Connelly (35 NY2d 171 [involving cocaine]), the problem was one of establishing that the substance which had been delivered for analysis (i.e., the "green vegetable matter” or "white powder” in People v Julian [supra] and People v Connelly [supra]; and the blood in Amaro v City of New York [supra]) was in fact a sample of the substance seized or purchased, or the blood taken. Because of the unremarkable qualities and the uniform appearance of the substances involved and the lack of any distinguishing characteristics, the authentication of a particular sample tested as the substance involved in the case could only have been accomplished by tracing the actual substance through a chain of custody from the undercover agent who purchased the drugs or the police officer who seized the drugs or the doctor who took the blood to the person who performed the tests in the laboratory. The authentication of a tape recording of a conversation like the authentication of a photograph of an accident scene presents no such problem. Both the recording and the photograph are reproductions of actual events, sounds or scenes, which someone has witnessed and can remember. The identifying characteristics of the tape are the voices of the participants, the peculiarities of their speech, and the content of the conversation recorded. The photograph depicts the contours and details of the scene which the witness has observed. Through the recollection and recognition of these identifying and, for the most part, unique features the witness can state whether the recording or the photograph accurately reproduces what was to be heard or seen. To be sure, both the tape recording and photograph are susceptible to alteration but the recollection of the witness who remembers what was said and by whom or knows what the scene looked like is protection against it.¹

The unequivocal and positive testimony of the participant Hartnett that the tape was a complete and accurate recording of the entire conversation constituted prima facie proof that the tape was trustworthy and not "adulterated.” Where, as here, no suggestion was ever made that the tape was incomplete or inaccurate in any particular, or that it had been altered, we think (contrary to the view of the dissent) that the minimal standards of admissiblity were satisfied and that the question of whether or not to receive it was one for the Trial Justice in the exercise of his sound discretion.

Although it is well established that the admissibility of a sound recording is a discretionary matter, the precedents in this State have not set forth specific guidelines to assist the court (see, generally, People v Lubow, 29 NY2d 58; People v Dinan, 15 AD2d 786, affd 11 NY2d 350; People v Feld, 305 NY 322; People v Goldfeld, 60 AD2d 1, 9; Matter of Anonymous, 286 App Div 161, mot for lv to app den 968; People v Horn-beck, 277 App Div 1136; People v Miller, 270 App Div 107; People v Gucciardo, 77 Misc 2d 1049, supra; People v Velella, 28 Misc 2d 579; Frank v Cossitt Cement Prods., 197 Misc 670; cf. Boyarsky v Zimmerman Corp., 240 App Div 361, involving the admission of moving pictures; cf. People v Higgins, 89 Misc 2d 913, 918, holding that a video tape is admissible where a proper foundation is laid by the testimony of a photographer, technician, engineer, or anyone who observed the events showing that the tape is a true, fair and accurate representation of the events, people, or scene depicted). The general rule is stated in New York Jurisprudence (vol 21, Evidence, § 371): "The reproduction of the sounds of an original event, recorded on a wire recorder, if relevant, competent from the standpoint of the manner in which the recording was obtained, and verified as a true representation, is admissible.” (Footnotes omitted.)

While the established Federal rule is that the admissibility of sound recordings is discretionary (see, e.g., United States v Craig, 573 F2d 455, supra; United States v Haldeman, 559 F2d 31, supra; Brandow v United States, 268 F2d 559, supra), Federal courts have required that "the government 'produce clear and convincing evidence of authenticity and accuracy’ as a foundation for the admission of such recordings” (United States v Fuentes, 563 F2d 527, 532, cert den sub nom. Sansone v United States, 434 US 959, quoting United States v Knohl, 379 F2d 427, 440, cert den 389 US 973). However, the cases do not establish "inflexible criteria applicable to all cases.” (United States v Fuentes, supra, p 532.)² Proof of authenticity and accuracy sufficient for admission of tape recordings of conversations has been supplied by the testimony of a participant to the conversation in conjunction with that of an expert who testified that in his opinion the tapes had not been altered (see United States v Craig, 573 F2d 455, supra); by the testimony of the undercover agent who observed the conversation and who made the recording (see United States v McMillan, 508 F2d 101, cert den 421 US 916); by the testimony of a participant in conjunction with that of the police officer who retrieved the tape and listened to it the day after it was made (see United States v Buzzard, 540 F2d 1383, cert den 429 US 1072); and by that of a participant alone (see Brandow v United States, 268 F2d 559, supra; Monroe v United States, 234 F2d 49). The Federal decisions indicate that a determination of admissiblity should, for the most part, be based on an examination of all of the relevant circumstances (see, generally, United States v Craig, supra; United States v Fuentes, supra; United States v Haldeman, supra; United States v Buzzard, supra; United States v McMillan, supra; Brandow v United States, supra; Monroe v United States, supra).

Neither the Federal nor the State authorities support the proposition that a sufficient foundation cannot be established through a participant’s testimony that: based on his clear recollection of the conversation and of the participants and the words that were spoken, and of the facts pertaining to the tape recording, including how and by whom it was made, the recording is an accurate and complete reproduction of all that was said. While it would have been better if the prosecution in the instant case had offered additional evidence, we cannot agree that in view of Hartnett’s unequivocal testimony and the absence of any question concerning the accuracy, authenticity, or audibility of the tape, the court abused its discretion in receiving it.

The judgment should, therefore, be affirmed.

1 . "It is true that a photograph can be deliberately so taken as to convey the most false impression of the object. But so also can any witness lie in his words, and when a qualified observer is found to say, 'This photograph accurately represents the fact which I observed,’ it is as if he had said, 'The following words accurately represent the fact I observed.’ In these circumstances, excluding the photograph as misleading may be begging the very question which the jury ordinarily have to decide; it may be as anomalous as if the judge were to order a witness from the stand because he was believed by the judge to be lying. Actual perjury should not be thus determined in advance by the judge—not more for photographic than for verbal testimony.” (3 Wigmore, Evidence [Chadbourne rev.], § 792, subd [3].) The same reasoning should, logically, apply to the admission of tape recordings.

2 . Some commentaries (see 17 Am Jur Proof of Facts, pp 44, 61; 29 Am Jur 2d, Evidence, § 436) refer to a suggested foundation for the admission of a recording based on United States v McKeever (169 F Supp 426, revd on other grounds 271 F2d 669), i.e., that (1) the recording device is capable of taking testimony, (2) the operator of the device is competent, (3) the recording is authentic and correct, (4) changes, additions, or deletions have not been made, (5) the recording has been properly preserved, (6) the speakers are properly identified, and (7) the testimony was voluntary and made without improper inducement. In Fuentes, however, the Second Circuit Court of Appeals stated that "this Circuit has never expressly adopted a rigid standard for determining the admissibility of tape recordings.” (563 F2d, p 532.)