(dissenting). I agree that the evidence adduced by the People, if credited, was sufficient to warrant a verdict of guilt, but that by no means ends our inquiry. We must still ascertain whether defendant had a fair trial, a trial free from prejudicial error.
I find it impossible to justify the series of rulings that prevented defendant from attempting to prove that the record of the intercepted conversation between Karp and Michaelson had been tampered with and his name “ dubbed in.” (See, e.g., Dubois v. Baker, 30 N. Y. 355; see, also, 7 Wigmore on Evidence [3d ed.], § 2027, p. 236.) That recording was, without a doubt, the most telling evidence against the accused. To jurors, “ hearing ” the conversation itself, it must have seemed *334powerful confirmation of Karp’s trial story. Indeed, were it not for that recording, the jury might well have accepted the testimony of defendant, a police officer who had enjoyed a good record for many years, rather than the say-so of convicted gamblers and confessed liars, men with a strong motive to testify falsely. And the prosecution must have appreciated this, for it went to great lengths to impress upon the jury the ££ physical ” character of the wire tap. Obviously, then, the authenticity of the record wks the critical issue upon the trial, and evidence reflecting upon its trustworthiness should not have been kept from the jury.
Although the conversation as recorded consumes some five minutes, Feld’s name is mentioned but once, and on that lone occasion after a pause of forty-five seconds. In and of itself, that was a highly suspicious circumstance, but defendant did not choose to rely upon that alone. Urging that the record had been altered to include defendant’s name, his attorney sought to establish that charge in two ways. In each instance, though, the attempt was completely frustrated by prosecution objections and court rulings.
Defendant first called a police inspector — Flath — and an official court stenographer — Lehman — who had heard a playback of the disc on September 15th, the day after the conversation had been intercepted. The trial judge, however, refused to allow the defense even to question those witnesses as to what they heard. And he persisted in his ruling, despite counsel’s explicit statement that he was challenging ££ the authenticity of the record ” and wanted to prove — through the testimony of the police inspector and by the shorthand notes of the court stenographer — that the name of Feld ££ was [not] mentioned in the record ” when it was first played. If the inquiry had been permitted and the witnesses had testified that Feld’s name was not on the record — or, its equivalent, that they did not hear his name when they listened to it (see Latourelle v. New York Central R. R. Co., 301 N. Y. 103, 108; see, also, 2 Wigmore, op. cit., § 664, p. 778) —it would mean that Karp had not mentioned Feld to Michaelson and that the record had been altered to include his name. The admission of such testimony would, j *335therefore, have had a tremendous impact upon the jurors; whether or not it would have prompted them to acquit, as I believe it unquestionably would, no one may say that the verdict was not influenced by its exclusion.
Thus prevented from trying to prove, more or less directly, that his name was not originally on the record, defendant called an expert witness in a further endeavor to show that the record had been tampered with. Again, his attempt to develop the point was thwarted by the court’s rulings. After striking, as unresponsive, the expert’s answer, “ I found the record mutilated ”, the trial judge refused to permit the witness to respond, to such questions as these, “ Did you find evidence of mutilation in the record? ” and “ did you find any extreme lapse of time which would indicate something to a person who did wiretapping work? ” As to the last query — the prosecution had advanced an explanation for the forty-five-second interval of silence that preceded mention of Feld’s name, but that certainly should not, contrary to the court’s suggestion (opinion, p. 331), foreclose defendant from seeking to prove, as a counterexplanation, that that “ lapse of time ” indicated a mutilation or an alteration of the record. Manifestly, if the prosecution’s explanations are to be accepted without challenge, the elements of a fair trial are lacking. And to maintain that “ the recordings were the best evidence of the conversation ” (opinion, p. 331), overlooks the fact that the integrity of those recordings was the very issue to which the excluded testimony was addressed.
Proof that the record had been mutilated, proof that defendant’s name had been “ dubbed in,” would not only have destroyed that “best evidence”, but would have gone far toward destroying the People’s principal witness, and, in all likelihood, its entire case. The errors committed, therefore, “went to the very heart of the issue [and] compel reversal and a new trial.” (People v. Mleczko, 298 N. Y. 153, 157.)
Loughean, Ch. J., Lewis and Fboessel, JJ., concur with Dye, J.; Fuld, J., dissents and votes to reverse and order a new trial in opinion in which Conway and Desmond, JJ., concur.
Judgment affirmed. [See 305 N. Y. 924.]