IT WAS REVERSIBLE ERROR TO ADMIT AN INAUDIBLE RECORDING AND TO PROVIDE THE JURY WITH A PURPORTED TRANSCRIPT OF THE RECORDING (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined it was reversible error to admit in evidence an inaudible tape recording and to provide the jury with a purported transcript of the recording:

Whether a tape recording should be admitted into evidence is within the discretion of the trial court after weighing the probative value of the evidence against the potential for prejudice” … . “An audiotape recording should be excluded from evidence if it is so inaudible and indistinct that a jury must speculate as to its contents” … . “Even where tape recordings are inaudible in part, so long as the conversations can be generally understood by the jury, such infirmities go to the weight of the evidence and not to its admissibility” … . “[I]n order to constitute competent proof, a tape should be at least sufficiently audible so that independent third parties can listen to it and produce a reasonable transcript” … .

… Supreme Court improvidently exercised its discretion in admitting the subject recording into evidence … . The first approximately 25 minutes of the conversation between the defendant and the complainant on the subject recording is almost completely inaudible, as all that can be heard are the background noises of a restaurant … . Further, some of the remaining portions of the subject recording were “so inaudible and indistinct” … that the jury would have had to speculate as to their contents … . The error was compounded when the jury was given what purported to be a transcript of portions of the largely inaudible recording … . People v Melendez, 2021 NY Slip Op 04497, Second Dept 7-21-21