Opinion
December 20, 1993
Appeal from the Supreme Court, Richmond County (Garry, J.).
Ordered that the judgment is affirmed.
In People v Bialostok ( 80 N.Y.2d 738), the Court of Appeals held that, irrespective of how it is actually used, an electronic device which can in some way be adapted so as to function as an eavesdropping device must be deemed an eavesdropping device for the purpose of applying the controlling statutory and constitutional provisions (US Const 4th, 14th Amends; N Y Const, art I, § 12; CPL 700.15, 700.05 Crim. Proc. [1]). During the investigation that eventually led to the defendant's arrest in this case, a pen register was installed on the telephone line of a third party, and the defendant asserts that this pen register may have been capable of the same sort of adaptation as that described by the Court of Appeals in the Bialostok case ( 80 N.Y.2d 738, supra). Conceding that the record is silent on the question of the pen register's susceptibility to such adaptation, the defendant argues that the matter should be remitted to the Supreme Court in order to provide him with an opportunity to remedy this deficiency in the record and, in the interim, the appeal should be held in abeyance. We conclude that this relief is not warranted, either as a matter of law or in the interest of justice.
An appellate court has no obligation to direct further proceedings in order to allow a defendant to inject new facts into the record, solely for the purpose of allowing the defendant to assert a legal argument on appeal which cannot properly be reviewed based on the record as it stands (see, e.g., People v Mercado, 62 N.Y.2d 866; People v Kinchen, 60 N.Y.2d 772; People v Charleston, 54 N.Y.2d 622; People v Messina, 196 A.D.2d 557; People v Noland, 189 A.D.2d 829; People v Weinberg, 183 A.D.2d 930; People v Mazzella, 178 A.D.2d 171; People v Gooden, 151 A.D.2d 773; People v Persaud, 144 A.D.2d 707; People v Underwood, 126 A.D.2d 584). The rule is no different where, as here, the validity of the legal argument sought to be advanced by the defendant is dependent, in whole or in part, on new case law pronounced by the Court of Appeals after the proceedings in the trial court had been concluded (see, e.g., People v Mercado, 62 N.Y.2d 866, supra; People v Donovan, 107 A.D.2d 433; People v Jennings, 94 A.D.2d 802). Assuming that the directing of such further proceedings might be authorized in the interest of justice (see, e.g., People v Tejada, 171 A.D.2d 585), we find that the interest of justice does not warrant such relief in this particular case.
In light of the foregoing, we express no opinion as to the retroactivity of the rule of the Bialostok case ( 80 N.Y.2d 738, supra), as to the defendant's standing to object to the pen register, or as to whether the data furnished by the pen register was decisive in furnishing the probable cause needed to issue the subsequent eavesdropping warrant.
We have examined the defendant's contention as to the sentence imposed and find it to be without merit. Bracken, J.P., Sullivan, Lawrence and Joy, JJ., concur.