Opinion
Submitted April 12, 1993
Decided May 11, 1993
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Raymond Harrington, J.
Denis Dillon, District Attorney 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, District Attorney of Bronx County (Patrick J. Hynes of counsel), for New York State District Attorneys Association, amicus curiae.
MEMORANDUM.
The People's motion to recall our opinion in the above matter (which appears at 80 N.Y.2d 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 N.Y.2d 52).
Motion to recall opinion denied in a memorandum.