The PEOPLE & c., Respondent, v. Milton BIALOSTOK, Appellant. The PEOPLE & c.,
Respondent, v. Lawrence SCOCCO, Appellant.
 Nos. 17, 18. Court of Appeals of New York. Feb. 25, 1993.
 SIMONS. Defendants have been convicted on gambling and conspiracy charges based, in
part, on evidence derived from electronic monitoring of two telephone lines used to
transmit bets. On these appeals they question whether a pen register [FN1] having the
additional capacity to monitor conversations should be treated as an eavesdropping
device [FN2] under the Criminal Procedure Law and therefore permitted only when a
magistrate has issued a warrant based on probable cause. We hold that unless a warrant is
obtained for instruments such as these, which were capable of monitoring conversations,
the evidence must be suppressed. In these cases, however, the error was harmless.
Defendant Scocco also contends that suppression is required in his case because law
enforcement officials failed to meet the requirement of CPL 700.50(3) that written notice
of a wiretap be given within 90 days of a warrant's termination. Because he received
adequate informal notice through his attorney within the applicable time period,
suppression is not required. Accordingly, the order of the Appellate Division should be
affirmed in each case.
I
Defendants and three others were indicted following an investigation of three "wire
rooms" where bets were being taken over the telephone. They challenge the lawfulness of
the electronic monitoring of the telephone lines at one of them. In late November of
1986, an investigator installed electronic devices and monitoring telephones on two lines
servicing the room. Each device was to serve as a pen register recording the telephone
numbers dialed. Under the law at that time, a warrant based on probable cause was
required for an eavesdropping device (CPL 700.15) but none was needed to install a pen
register. [FN3] Numbers recorded by the devices over the next several days were then
used to support an application for an eavesdropping warrant to monitor conversations on
the two lines. The warrant was issued and the investigator returned to the monitoring
equipment, where, by simply attaching an audio cable, a tape recorder and a wire to
activate the recorder's remote start, he converted the previously installed units into
listening devices. Calls were monitored from December 12 until December 22 and the
evidence obtained was used by the People to prosecute defendants and their associates.
The nature of the equipment used on the two lines was first discovered at trial during the
testimony of the investigator who installed it. Unlike the traditional pen register, the
equipment employed here had audio capacity and thus defendants contended that the
monitors were really eavesdropping devices. Though no evidence was introduced to
suggest any conversations were heard or recorded prior to the December 12 warrant,
defendants argued that the technological capacity of the devices brought them within the
eavesdropping statute and required that an eavesdropping warrant be obtained prior to
installation. The trial judge ruled that no warrant was needed because the devices were
used solely as pen registers. The Appellate Division agreed, relying on the testimony of
the installer that he had "disabled" the audio function at installation and that it had
remained disabled throughout the period prior to the warrant. II Analysis begins with an
understanding of why pen registers were exempted from the warrant requirement in the