People v. Tyson

—Appeal from judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered July 29,1992, convicting defendant, after a jury trial, of rape in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 to 20 years, unanimously held in abeyance, application for the expenditure requested by defendant to retain an independent court-ap

It was an abuse of discretion to deny defendant’s request for a reasonable expenditure to test whether a voice on a tape offered in evidence, in which defendant allegedly admitted the crime, was in fact defendant’s (see, Johnson v Harris, 682 F2d 49 , 50-51, cert denied 459 US 1041 ). Defendant established extraordinary circumstances justifying compensation for the test (County Law § 722-c; see, People v Gallow, 171 AD2d 1061 , 1062, lv denied 77 NY2d 995 ), the results of which could have severely damaged the victim’s credibility (compare, People v Williams, 160 AD2d 754 , affd 77 NY2d 949 ). A preliminary hearing must then be held to determine the scientific reliability of the test should the expert conclude that the voice on the tape was not defendant’s (see, People v Jeter, 80 NY2d 818 , 821). Of course, the expert must, in the first instance supervise the creation of the defendant’s voice exemplar. Concur—Murphy, P. J., Carro, Ellerin, Wallach and Kupferman, JJ.