People v. Bialostok

• Decision Date: 11 May 1993
• Citation: 81 N.Y.2d 995,599 N.Y.S.2d 532
• Parties: , 615 N.E.2d 1016 The PEOPLE of the State of New York, Respondent, v. Milton BIALOSTOK, Appellant. The PEOPLE of the State of New York, Respondent, v. Lawrence SCOCCO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 532

599 N.Y.S.2d 532

81 N.Y.2d 995, 615 N.E.2d 1016

The PEOPLE of the State of New York, Respondent, v. Milton BIALOSTOK, Appellant.

The PEOPLE of the State of New York, Respondent, v. Lawrence SCOCCO, Appellant.

Court of Appeals of New York.

May 11, 1993.

[81 N.Y.2d 996] Denis Dillon, Dist. Atty. of Nassau County, Mineola (Douglas Noll, of counsel), for movant.

Cahn Wishod Wishod & Lamb, Melville (Scott M. Karson, of counsel), for Lawrence Scocco, appellant.

Robert T. Johnson, Dist. Atty. of Bronx County (Patrick J. Hynes, of counsel), for New York State Dist. Attys. Ass'n, amicus curiae.

OPINION OF THE COURT MEMORANDUM.

The People's motion to recall our opinion in the above matter (which appears at 80 N.Y.2d 738, 594 N.Y.S.2d 701, 610 N.E.2d 374) should be denied.

The People now contend that our discussion of the warrant requirement as it existed before the enactment of CPL 705.10 (L.1988, ch. 744, § 21) is erroneous because it is based on improper factual assumptions about the technology involved. Our decision was based on the record certified to us on appeal, which cannot now be supplemented by new materials. Thus, as the case was presented to us, the disablement of the pen register's audio function was insufficient to prevent the abuse identified in People v. Gallina, 66 N.Y.2d 52, 495 N.Y.S.2d 9, 485 N.E.2d 216.

Motion to recall opinion denied in a memorandum.