
    The People of the State of New York, Respondent, v. Wilfred Betts, Martin Hirsch, Leonard Cohen and William Henry, Appellants.
    First Department,
    November 28, 1947.
    
      
      Sol Gelb of counsel (Harris B. Steinberg with him on the brief), for appellants.
    
      
      Eugene A. Leiman of counsel (Whitman Knapp with him on the brief; Frank S. Hogan, District Attorney), for respondent.
   Cohn, J.

Appeal by defendants from judgments of the Court of Special Sessions, New County, crime of reselling tickets at excessive prices in violation of section 169-c of the General Business Law and conspiracy (Penal Law, § 580).

The information contains fifteen counts, fourteen of which charge one or another of defendants with violation of section 169-c of the General Business Law and the fifteenth count charges all with conspiracy to violate the provisions of the General Business Law respecting the sale of tickets of admis- • sion to theatres and places of amusement.

Defendant Betts was a oo-owner of the Jacobs Ticket Agency located in New York County. The other defendants, Hirsch, Cohen and Henry were employees. The People’s case is grounded largely upon the testimony of police officers who, pursuant to court order, intercepted telephone conversations over the wires of the ticket agency from June 1, to June 5, 1946. The police claim to have overheard and recorded conversations in which, it is alleged, each of the defendants sold and offered for sale, tickets to a prize fight and to Broadway plays at prices in excess of those permitted by statute. On June 5, 1946, the police arrested the four defendants in the store occupied by the ticket agency and at the same time seized theatre tickets with slips attached bearing notations of names of persons and theatres, together with dates and prices charged by defendants.

Defendants contend that proof of the telephone conversations was improperly received in evidence and that without such testimony there is no basis for a conviction.

On June 1, 1946, police officers William J. Dwyer and Lawrence M. Parry tapped ” the telephone wires of the Jacobs Ticket Agency. They listened to conversations on June 1st, 3d, 4th and 5th. Parry took no notes and he had no independent recollection of any of the conversations but two, neither of which was of particular significance. Dwyer made extensive notes of what- he says he heard, in his own shorthand. He recorded twenty-four telephone conversations between defendants and outside customers. From talks had with the four defendants after their arrest and from a telephone call he himself had made to one of them, Dwyer could, according to his testimony, identify the voice of each defendant as he had heard it over the telephone. Dwyer testified that he had no independent recollection of nineteen of these telephone conversations. Of the remaining five, he stated that he could recall only one which related to the sale of tickets in violation of law. That was an alleged talk between defendant Betts and a person identified as “ Irving C.”

Dwyer described his method of recording as follows: As he was listening in, he would “ scribble down shorthand ” as much as he could upon a pad of paper. He would record only those conversations which had to do with sales at prices in excess of those permitted by law. At the end of each day he would transcribe his shorthand notes into longhand and after each such transcription the original shorthand notes were destroyed. On June 6th, the day following the arrest of defendants, from the longhand transcriptions, he dictated a statement of the conversations he had overheard to the complaint clerk in the Magistrate’s Court, who incorporated the statement into the complaint. Dwyer then destroyed his longhand transcriptions.

Thereafter, on October 21, 1946, as a witness at the trial, Dwyer stated that he had no independent recollection of the telephone conversations but could testify as to their content only from the typed complaint composed in the manner already described. He frankly admitted that he had destroyed his original shorthand notes and the secondary longhand transcriptions to forestall cross-examination as to their accuracy; that in other cases he had been compelled to go through a cross-examination and that he saw no purpose in being required to do that in this case. He stated that when he dictated the complaint on June 6th his recollection of the previous conversations accorded with what was typed out by the complaint clerk. The trial court thereupon permitted the witness to use the Magistrate’s Court complaint to refresh his recollection. Apparently what the witness actually did was to read into the record from the complaint, almost word for word, all the overheard conversations as set forth therein.

Defendants urge that because of Dwyer’s willful destruction of the original notes and the secondary notes, the trial court erred in permitting the witness to refresh his recollection from the Magistrate’s Court complaint. It is the contention of the People that the conduct of the officer in destroying the original notes should be considered only upon the question of what weight or probative force is to be accorded his testimony as to the conversations and does not go to the admissibility or competency of such evidence; that a ruling admitting such testimony upon the trial is virtually conclusive ”.

Inspection of the Magistrate’s Court complaint shows that a recital of the conversations allegedly overheard covers four single-spaced typewritten pages. It is incredible that a witness could recall the details of such multiple conversations which had taken place on different days some five months before the trial. Obviously he could have no independent recollection of these conversations without a written record made at the time to refresh his recollection. The police officer has frankly stated that he destroyed the original written record and his subsequent longhand transcriptions to prevent cross-examination as to their correctness. When he did away with these notes he may well have believed that he was doing no wrong, yet by his conduct he has deprived defendants of their fundamental right to cross-examine as to the correctness and veracity of his original notes recorded under circumstances which might create grave question as to their accuracy.

In the circumstances of this case we think that the trial court erred in permitting the witness Dwyer to refresh his recollection from the Magistrate’s Court complaint as to the conversations overheard and as to the identity of the persons who partook therein and the court should not have permitted him to read such transcript into the record. While the general rule is that any paper whatsoever may be used to refresh the recollection of a witness provided it actually serves that purpose (Huff v. Bennett, 6 N. Y. 337; 2 Ford on Evidence, § 212; 3 Wigmore on Evidence [3d ed.], § 758), where as here, an officer of the law attempts to refresh his recollection from a writing which purports to be a transcript of original and secondary notes willfully destroyed by him to frustrate cross-examination, the witness should not be permitted to use such a document to aid him.

The situation presented is somewhat analogous to a case where one tries to prove the contents of a lost or destroyed writing by giving secondary evidence as to its contents. Unless sufficient reason is shown for not producing the writing, the best evidence rule requires that the writing itself be produced to prove its contents. (Mahaney v. Carr, 175 N. Y. 454, 461; Butler v. Mail & Express Pub. Co., 171 N. Y. 208, 211.) If the destruction of an original writing is with a fraudulent design, then parol evidence is inadmissible. A party may not have the benefit of inferior evidence where the higher testimony has been willfully destroyed. (Blade v. Noland, 12 Wend. 173.) It has been repeatedly held that the spoliation of an original document will prevent the spoliator from proving the contents of the destroyed document by secondary evidence. (Riggs v. Tayloe, 9 Wheat. [U. S.] 483, 485; Matter of Eno, 196 App. Div, 131, 163; West v. N. Y. Central & H. R. R. R. Co., 55 App. Div. 464; Jewett v. United States, 15 F. 2d 955, 956; “ Joannes ” v. Bennett, 87 Mass. 169, 172; Administrators of Price v. Administrators of Tallman, 1 N. J. L. 447.) The rule has been well stated in Ford (Vol. 4, § 363): “ If a writing is destroyed by a party to produce a wrong or injury to the opposite party, or to create an excuse for its non-production, he cannot give secondary evidence of its contents.”

Applying to the facts here the reasoning employed in the cases cited involving the best evidence rule, unless it is clear that the police officer depends upon his independent recollection of the conversations and not upon rehashed transcripts based upon original notes which he has deliberately destroyed, testimony founded upon the missing transcripts should be barred. Though the People have urged that the conduct of the officer in doing away with his original notes should be a factor which bears not upon the competency but only upon the weight to be accorded to his testimony of the conversations as he overheard them, we hold that in the circumstances here disclosed it would do violence to all principles of justice to allow in evidence proof of any conversations, supplied by having the witness refresh his recollection from the Magistrate’s Court complaint. The trial court in the circumstances of this case committed prejudicial error in overruling defendants’ objection to the admission of the witness’ testimony of the conversations as refreshed by the objectionable document.

It is suggested that as the triers of the facts have determined that the destruction of the original shorthand notes and the subsequent longhand transcripts thereof was not effected in bad faith or for a fraudulent purpose, such a ruling should not be disturbed by the appellate court. However, we find that there is no evidence to support the trial court’s ruling. When the officer testified that he destroyed his original notes to avoid cross-examination, any preliminary question as to his good or bad faith was eliminated. His purpose was obviously improper and in bad faith. To say that a police officer in good faith and innocently made an error of judgment ” when he destroyed documents because he “ didn’t wish to be cross-examined about them ” is a patent contradiction of terms. This was not a simple error of judgment but confessedly a deliberate and considered act.

The order slips and tickets seized at the office of the ticket agency on June 5, 1946, the date of defendants’ arrest, we are now told, “ corroborates ” the recorded wire taps as testified to upon the trial as to dates, amounts, charges, tickets and performances. We are also advised that the alleged admission made by the defendant Betts at the time of his arrest to the police officer that “ You have the telephone conversations. You' don’t have to take the tickets,” also corroborates ” the accuracy of these transcripts.

There is no evidence in the record to the effect that officer Dwyer told Betts of the tapped telephone conversations. Certainly there is no proof that on June 5th he advised Betts of the substance of the telephone conversations as he dictated them the next day. What the officer found at the ticket agency on June 5th or what he was told by defendant Betts or the other defendants on that day cannot by any stretch of reasoning be regarded as “ corroborating ” the accuracy or correctness of the rehashed transcript dictated the next day to the complaint clerk in the Magistrate’s Court.

Enforcement of the law and the administration of justice are not promoted through thwarting of the right of cross-examination in a criminal prosecution. While it may be true that the defendants if guilty are worthy of punshment, they are under our system of law entitled to have their guilt properly established upon a fair trial free from substantial error. (People v. Marendi, 213 N. Y. 600, 619; People v. Wilcox, 245 N. Y. 404; People v. Elbroch, 250 App. Div. 583, 590.)

It may well be that upon another trial, from legal evidence available as well as from such portions of the conversations as to which police officers may have an independent recollection, which may be refreshed in any proper manner, the People will adduce sufficient proof to warrant a conviction of the crime charged against one or all of the defendants, but upon the record before us the judgments of convicion may not be permitted to stand.

The judgment of conviction as to each defendant should be reversed and a new trial ordered.

Dore, J.

(dissenting). Defendants’ conviction of the crimes of reselling theatre tickets at excessive prices (General Business Law, § 169-c) and conspiracy so to do (Penal Law, § 580) are being reversed on the ground that the police officer’s testimony of the telephone conversations is incompetent because he admitted destroying original and secondary memoranda of the talks to avoid cross-examination. The People urge that the admitted destruction of the original memoranda does not make the testimony incompetent or entirely inadmissible, but bears on the weight, if any, that should be accredited to it. In the light of the facts disclosed in this record, I think the People’s contention should be sustained and the convictions affirmed.

If original notes or memoranda of recorded conversations are not available, a witness may testify from a copy so long as there is testimony, as there was here, that the facts were truly recorded and the copy a true one. In People v. Engelbrect (260 App. Div. 912), in a prosecution for leaving the scene of an accident, a witness copied the license number of an automobile on a match box; thereafter she gave’ the match box to a patrolman who copied the number on a temporary memorandum pad and threw the match box away; later the patrolman recopied the number into his permanent memorandum book and discarded the temporary pad. On testimony that the number had been copied correctly, the final entry was accepted; this court sustained the judgment of conviction over the specific contention that such evidence was incompetent. In Goodfriend v. United States 294 F. 148, 152-153, [1923]) the court upheld the use of memoranda recopied from contemporaneous notes which had been destroyed. The witnesses made notes of conversations which they afterwards extended in greater detail while the facts were fresh in their memories and the court said: It is not a valid objection to the use of a memorandum that it has been copied from another.”

This rule may be applied even where 'the original has been deliberately destroyed if it appears that the destruction was free from bad faith or fraudulent design; the evidence is not in every case incompetent, but its weight is greatly affected and there is strong inference that what was destroyed is unfavorable to the spoliator. ■ (Contra spoliatorem omnia presumuntur.) But the presumption is not conclusive and the use of secondary evidence should not be precluded if the triers of the fact after proper examination determine that the destruction was not in bad faith or fraud and in fact did not prevent the court from ascertaining the true facts. Whether the destruction was innocent or corrupt is a preliminary question of fact for the trial court. If such inquiry shows bad faith or fraud the secondary evidence may be excluded (Blade v. Noland, 12 Wend. 173; “ Joannes ” v. Bennett, 87 Mass. 169, 173). But if the circumstances dispel suspicions of corrupt intent the secondary evidence is competent and should be received.

The question was considered by the Court of Appeals in Mason v. Libbey (64 How. Prac. 259, 267-268). The trial court had excluded a destroyed letter; the Court of Appeals said: “ * * # it was for the court to determine in the first instance whether the evidence established that the letter was destroyed, and also that its destruction was not to produce a wrong or injury to the opposite party, or to create any excuse for its non-production * * *. This is so whether the paper was destroyed by a party * * * or a witness *' * *, and the sufficiency of the explanation presented a question of fact for the trial judge which this court cannot review. ’ ’

A similar question was considered by the same court in Steele v. Lord (70 N. Y. 280, 283), where vouchers had been deliberately destroyed, and the spoliator said it was his custom so to do after settlement with the bank. Evidence of the contents of the vouchers was allowed by the trier of the facts. Bapallo, J. for the court held: “ The truth and good faith of this explanation were questions of fact for the referee, which it is not. the purpose of this court to review.” In Dearing v. Pearson (8 Misc. 269, 272 [N. Y. Com. Pleas — Gen. Term 1894]), the applicable principle is stated as follows: Whether or not the destruction of the instrument was prompted by motives innocent of corrupt intent or design is a preliminary question of fact which must be determined by the trial justice before parol evidence of the contents of the instrument is receivable * * *, and with his determination upon conflicting evidence, or upon conflicting inferences from the evidence, the appellate court will not interfere. It is the province of the appellate court to reverse the trial justice’s determination only when there is no evidence whatever or no sufficient evidence to support the latter’s determination of the facts.”

Wigmore, considering the rules applicable to memoranda used in attempting to revive past and present recollections, says: “ The trial court’s discretion should be allowed to control. There should be liberal interpretation and liberal exemption. And no ruling of admission should ever be deemed an error worth noticing on appeal. ” (Vol. 3, § 755.) (See, also, Hearsay and Preserved Memory, Edmund M. Morgan, 40 Harv. L. Rev. 712, 721.)

In the case before us there was the widest preliminary cross-examination by defendants’ counsel and by the court itself into the reasons that had prompted Officer Dwyer to destroy the original notes. He testified that he destroyed them because he did not want to be cross-examined “ in that particular way ”, and said he could not recollect “ all ” the testimony without using the complaint. Defendants’ counsel admitted that if the destruction were done in good faith, I [defendant’s counsel] would not have a leg to stand on.” After completion of the preliminary, prolonged examination, the court unanimously concluded that the witness had not- acted in bad faith, but on the contrary expressly stated through the Presiding Justice that the officer had been “ very frank on the witness stand, very frank and honest ”. Thereafter the witness was permitted to use the complaint as a memorandum of past recorded facts, made immediately after completing the wire tapping ánd compared with the original transcribed notes from which the complaint was dictated, all of which agreed with his recollection at the time of what he had heard on the four previous days, June 1st, 3d, 4th and 5th. What he did, he testified, was his usual procedure.

If the witness Dwyer was not exceptionally frank and honest, he never would have volunteered the statement that he destroyed the original notes to avoid a particular type of cross-examination, but would have attempted to explain in some other way, e. g., through loss or accident, the absence of the original memoranda. His testimony was forthright, frank, honest, believable. It completely satisfied the trial court that the true facts had not been suppressed or kept from the court. The officer’s veracity, the sufficiency and truthfulness of his explanation were for the trial justices and on the facts here disclosed their conclusion should not be set aside (People v. Tendetnick, 237 App. Div. 9, 11-12 [1st Dept. 1932]; People v. Atlas, 183 App. Div. 595, 600 [1st Dept. 1918], affd. 230 N. Y. 629 [1921]). It seems clear to me, as it was entirely clear to the three trial justices who saw and observed the witness, that the officer made an error of judgment, did not intend any fraud or attempted fraud or act in bad faith.

The accuracy of the transcript and of the original notes transcribed was corroborated by the admission of defendant Betts, co-owner of the ticket agency, that the police had enough evidence from the wire tapping without seizing tickets and order slips. Thus, Officer Dwyer testified, no.t from memoranda but from his own recollection, that on the day of the arrest when he showed the tickets to Betts, Betts said: “ What do you want to do — hang me?” “You have the telephone conversations. You don’t have to take the tickets.” “You know, I don’t get the tickets for their face value either. ’ ’ Police Sergeant Rooney, present at the arrest, corroborated this when he testified that Betts said: “You got .enough now. What do you want to do — hang us? ” From such admissions, if believed, it follows as a necessary inference that Betts was told the wires had been tapped.

The charge of selling tickets at excessive prices in violation of the General Business Law was established beyond a reasonable doubt. As the justice presiding at the trial said: “ So far as we are concerned, we know there was a violation of law; there is no question about that * * He also pointed out: “ The crime was serious, especially in view of the very large excess charge for the tickets.” Thus $100 tickets to the Louis-Conn prize fight were offered for $150 or $175 each depending on location; four $6.60 tickets to a leading Broadway production were sold for $40.00 and $6.60 seats for another production at $9.90.

In every instance Officer Dwyer testified that he had an independent recollection of the voices of the different defendants on the telephone. He had full and ample opportunity to study their voices. He had listened to numerous telephone conversations in a period extending over four days, June 1st, 3d, 4th and 5th. Many of them were not recorded because they were not relevant. Immediately after the wire tapping on June 5th, about 5:30 p.m. he went to the agency, found the four defendants and following the arrest conversed with each at considerable length and identified the voice of each. The triers of the fact properly found nothing incredible in such testimony.

The order slips and the tickets in defendants’ possession, seized on the day of arrest, also corroborated the recorded wire taps in a number of instances as to dates, amounts charged, tickets and performances. Defendants’ counsel conceded that the prices of tickets referred to in the telephone conversations were in every instance in excess of the legal rates.

Defendants did not take the stand or adduce any evidence whatever in their own behalf.

This is not a case of proving a missing document that has been deliberately destroyed, such as a letter or a deed, or a will that is the subject matter of the proof. Here the issue relates solely to a memorandum of a fact recorded. There is a distinction between proving a fact which has been put in writing and proving the writing itself. (McKelvey on Evidence [5th ed.], p. 609, § 345.) Even where a missing document is involved, it is only in the absence of proof rebutting fraudulent design that secondary evidence is entirely excluded (“Joannes” v. Bennett, 87 Mass 169, 172-173).

There is nothing in Jewett v. United States (15 F. 2d 955) to the contrary. There the original documents were available and°were not destroyed; the court concluded that in such instance the witness- should have recourse to these in attempting to refresh-his recollection. In fact that case recognizes the rule contended for by the People, for the court pointed out:The government cites as authority for the course pursued Goodfriend ■fT.United ‘States (C.C.A.) 294 F. 148. But'the copies there used were made soon after the event and while the facts were still -fresh in memory. Clearly, if, as was there the case, brief memoranda, made at the very time of the occurrence, are amplified and copied soon after the occurrence, and while the facts are still fresh in. the memory of the witness, the use of such copy falls within the principle underlying the rule.” i

- All that Matter of Eno (196 App. Div. 131, 163) stands for is that where written evidence is deliberately destroyed the inference is created that the matter destroyed or mutilated is unfavorable to the spoliator. In brief, an unfavorable inference may arise in such a case; but this does not mean that secondary evidence of; the contents of the destroyed document may not be received if the court is convinced that the destruction was free from fraudulent design. I

The conspiracy count was also proved beyond a reasonable doubt. The record establishes numerous facts showing that all. defendants were confederates in the commission of the offense. The grossly excessive prices charged were practically uniform in all the transactions. Persons unknown to defendants did not get tickets without regard to which defendant was on the ■phdne. After the arrest, Cohen, Ilirsch and Henry admitted, as Officer Dwyer testified on his independent recollection, .that “ they carried out their orders which [were] given to them, by Mr. Betts and they made themselves a few extra dollars a week by overcharging on tickets.” ' ■ .

■. The defendants had apparently learned of a police investigation and they passed the word to each other and even to another agency. Officer Dwyer. testified (in this instance on his own recollection) of a telephone conversation between the Gold Ticket Agency on the outside and Leon Cohen of the Jacobs Agency on the inside. He testified that Cohen said: “ This is Lean over at Jacobs. -If you see a light-haired fellow with a .dark-haired girl looking for the Louis-Conn fight, be careful. They are the law. And there is a dark-haired fellow with a tan raincoat, by himself, who is following up after them. He is (also the law. Watch your step. They are out to grab us, if •they can.’ The voice on the other side said, ‘ Thanks for the dip-off ’■ ”, Again Betts from outside the agency called Cohen at the agency and said: ‘This is Bunny. Has the law .been around there yet? I’ve been told that they are out at the different ticket offices trying to buy tickets for the Louis-Conn fight.’ The inside voice said, ‘ Yes, I have been tipped off fo them. I steered them off.’ ” The witness remembered that particular conversation and that the outside voice was Betts’, and the inside, Cohen’s.

All defendants in the agency were seen behind the desk each day working together by the officer who frequently walked past during the days he tapped the wires. Defendants’ conduct could not be the result of independent, unplanned, coincidental acts, but on the contrary the result of a definite plan. The state of facts is similar to that found in People v. Cooper (268 App. Div. 966, affd. 294 N. Y. 797) where a co-owner and an employee of a ticket agency were convicted of selling railroad tickets at excessive prices and for conspiracy. The conviction there was based on evidence obtained by wire tapping and the defendants urged that their concertive conduct did not import a conspiracy. This court and the Court of Appeals rejected that contention.

The order slips and tickets seized at defendants’ place of business in connection with the arrest were properly received in evidence. A number of them referred specifically to overheard telephone conversations. Betts, Hirsch and Henry admitted knowledge and control of the exhibits and attempted to exercise dominion over them. Each set of slips and tickets patently evidences sales at excessive prices.

At least on the facts in this case, the court should not lay down a rigid and inflexible rule that where a memorandum of past recollection is destroyed to avoid cross-examination all secondary evidence of the facts recorded should be excluded as completely incompetent and inadmissible even though the triers of the fact, who had the opportunity of seeing and observing the witness, found after extensive examination that the destruction was not in deliberate bad faith or actual fraudulent intent to prevent the court from ascertaining the truth.

The People admit that Betts’ total fine of $1,500 ($500 for each of the substantive counts) is in excess of the $250 specified by statute (General Business Law, § 169-i) and that his sentence should be modified accordingly. i

From reversal of the judgments of conviction, I dissent and vote to reduce Betts’ total fine from $1,500 to $750, and in all other respects to affirm.

i Peck, P. J., Glennon and Callahan, JJ., concur with Cohn, J.; Dobe, J., dissents from reversal of the judgments of conviction and votes to reduce Betts’ total fine from $1,500 to $750 and in all other respects to affirm, with opinion.

Judgment of conviction as to each defendant reversed and a new trial ordered. Settle order on notice.  