What is the test for admitting an audio recording at trial?

In order for an audio recording to be admitted into evidence at trial, the People must lay a foundation establishing "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" ( People v. Ely , 68 NY2d 520, 527 [1986] [internal quotation marks and citation omitted] ). Such proof can be established by the testimony of a participant in the conversation that the recording is a complete and accurate reproduction of the conversation which has not been altered, by the testimony of a witness to the conversation to the same effect, by the testimony of a participant in the conversation together with proof by an expert that the recording has not been altered, or by testimony establishing the chain of custody of the recording ( id. , 68 NY2d at 527-528 ).

Here, none of the participants in the complainant's 911 call or the 911 call that had allegedly been made by defendant testified at trial. The People did not offer any evidence that the recordings are "genuine and that there has been no tampering with [them]" ( id. at 527 ), and they did not offer any expert evidence that the recordings had not otherwise been altered (see id. ). Consequently, the only remaining means for the People to prove the accuracy or authenticity of the recordings was by introducing chain of custody evidence, which the People failed to do. Such proof "requires, in addition to evidence concerning the making of the tapes and identification of the speakers, that within reasonable limits those who have handled the tape from its making to its production in court identify it and testify to its custody and unchanged condition" ( id. at 528 [internal quotation marks omitted]; cf. People v. Patterson , 93 NY2d 80, 84 [1999] [chain of custody may be shown to prove the authenticity of a videotape or photograph "and even allow for acceptable inferences of reasonable accuracy and freedom from tampering"] ).