THE PEOPLE &C., RESPONDENT, v. MILTON BIALOSTOK, APPELLANT. / THE PEOPLE &C., RESPONDENT, v. LAWRENCE SCOCCO, APPELLANT.
81 N.Y.2d 995, 615 N.E.2d 1016, 599
N.Y.S.2d 532 (1993).
Mo. No. 402 [1993 N.Y. Int. 109]
May 11, 1993
Decided May 11, 1993
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
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).
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Motion to recall opinion denied in a memorandum.