September 11, 2013
PEOPLE of the State New of New York
Paul NOVAK, Defendant. No. 233-2012.
This decision has been referenced in a table in the New York Supplement.
Gary Greenwald, Esq., Greenwald Law Offices, Chester, Attorney for Defendant.
Hon. James R. Farrell, Sullivan County District Attorney, Stephen F. Lungen, Esq., Monticello, Special Prosecutor, Attorney for the People.
FRANK LaBUDA, J.
As the People v. Novak trial, which involves the December 12-13, 2008, murder and arson of the defendant's wife at her home in Sullivan County, New York, enters its fifth week of trial before a jury, the Prosecution has made an oral application for a motion in limine to preclude the defense from introducing all or part of an eight minute tape recorded interview of a key prosecution witness  taken by Defense Counsel at his office several months prior to trial. A copy of the tape was provided to the Prosecution before trial, but was not reviewed with the witness until a day before the witness was to testify during trial.
The defense proffers that the tape is relevant and material to rebut the anticipated testimony of the witness on key issues of statements allegedly made to the witness by the defendant, Paul Novak and co-defendant, Scott Sherwood  shortly after the homicide was committed. The People oppose the use of the tape by the defense for cross-examination on several grounds, namely: it is inaudible, incomplete, and not a true copy of the approximately one hour interview, and that there is no proof that the tape was not tampered with or altered. The People also object that a copy of the tape-recorded conversation, provided to them by the defense, is inaudible and slightly longer than the defendant's exhibit Item ZZ marked for identification. Finally, the prosecution asks for an immediate audibility hearing. With the jury waiting, and the witness about to take the stand, this Court conducted an immediate audibility hearing out of the presence of the jury. At the hearing, the defense also proffered a purported transcript of the eight minute tape-recorded portion of the interview.
Upon the conclusion of the audibility hearing, this Court makes the following findings of fact, beyond a reasonable doubt:
1. The tape, although of a poor quality, is audible.
2. The transcript, although not per se, is a helpful and fair aid to the recording.
3. That there is no evidence of tampering or alteration of this tape.
In the main, the People rely upon two Third Department cases; People v. Jackson 43 A.D.3d 488, 841 N.Y.S.2d 157 [3rd Dept.2007] and People v. Bell, 5 A.D.3d 858, 773 N.Y.S.2d 491 [3rd Dept.2004]. It is long standing law in New York that the admissibility of a tape-recorded conversation requires " proof" of the accuracy or authenticity of the tape by " clear and convincing evidence, establishing that the offered evidence is genuine and that there has been no tampering with it" ( citations omitted ) ( People v. Bell, supra at 861, 773 N.Y.S.2d 491). It is also clearly established law in New York that a tape recording may be admitted through the testimony of the person who recorded it by setting forth that the recording is a complete and accurate reproduction of the conversation and that the tape has not altered along with testimony identifying the speaker. Id. Thus, the question of the admissibility of the defense tape will turn on the question of fact as to whether the witness can relate that the tape fairly and accurately represents that portion of the tape-recorded conversation had with defense counsel and that there were no changes, deletions or alterations to that recorded portion. Assuming the witness can provide this proper foundation to the tape, although, incomplete, it will be admissible. In People v. Jackson, supra, the court allowed the prosecution to offer into evidence two tapes of two separate narcotic transactions where only one tape was " the whole tape' of the second buy" and the first tape apparently was a partial recording, but identified by the witness as having " fairly and accurately capture[d]" the conversations that took place during the buy. The testimony of one of participants to the tape was a sufficient foundation for the admission of the recordings at trial since the witness identified the conversation as accurate and authentic. Id., at 490, 841 N.Y.S.2d 157. Thus, this Court does not find, and there is not judicial authority, that as a prerequisite to the admission of a taped-recorded conversation that the conversation must be " completely" or entirely recorded. It is sufficient that the purported portion of the taped conversation is not taken out of context, accurately and fairly represents that portion of the conversation in question.
Therefore, the defense may use the subject recording for purposes of cross-examination of this witness.
This shall constitute the Decision and Order of this Court.