Majority
p. 995The 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. Submitted April 12, 1993; decided May 11, 1993
p. 996
APPEARANCES OF COUNSEL
Denis Dillon, District Attorney of Nassau County, Mineóla (Douglas Noll of counsel), for movant.
Cahn Wishod Wishod & Lamb, Melville (Scott M. Karson of counsel), for Lawrence Scocco, appellant.
Robert T. Johnson, District Attorney of Bronx County (Patrick J. Hynes of counsel), for New York State District Attorneys Association, amicus curiae.
OPINION OF THE COURT
Memorandum.
The People’s motion to recall our opinion in the above matter (which appears at 80 NY2d 738 ) 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 NY2d 52 ).
Motion to recall opinion denied in a memorandum.
Cases cited
- People v. Scocco 80 NY2d 738 p. 996
- People v. Gallina 66 NY2d 52 p. 996