People v. Bernstein 69 A.D.2d 907

Appeal by defendants from two judgments (one as to each of them) of the Supreme Court, Kings County, both rendered January 15, 1978, convicting them each of criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the third and fifth degrees and conspiracy in the first degree, upon jury verdicts, and imposing sentences. Judgments reversed, on the law, and new trial ordered. In our opinion it was error for the trial court to have admitted into evidence the tape made by an undercover officer on June 2, 1976. After listening to the tape we find it was so inaudible that a jury would have had to speculate as to its contents (see People v Sacchitella, 31 AD2d 180). The tape consisted mainly of background noises of a busy restaurant from which only isolated phrases of conversation could be discerned. At an audibility hearing, the trial court listened to the tape with the aid of a transcript supplied by the People. It ruled that the sounds on the tape were so "equivocal” in their meaning that the "interpretation” contained in the transcript would be prejudicial to defendants and accordingly excluded the transcript from consideration by the jury. Thus, the tape did not meet the test enunciated by us in People v Mincey (64 AD2d 615), that a tape "should at least be sufficiently audible so that independent third *908parties can listen to it and produce a reasonable transcript.” Hopkins, J. P., Damiani, Rabin and Mangano, JJ., concur.