PEOPLE v. SMITH (2000)

Defendant moved pursuant to CPL 440.10 to set aside a judgment convicting him of various drug-related offenses.   Defendant contends that the conviction is supported by evidence illegally obtained through the use of a pen register device capable of monitoring the content of telephone conversations, and that the order authorizing the installation of the pen register was not based upon probable cause (see, People v. Bialostok, 80 N.Y.2d 738, 744-745, 594 N.Y.S.2d 701, 610 N.E.2d 374).   Defendant further contends that he was denied effective assistance of counsel because defense counsel failed to move to suppress evidence obtained through the use of the pen register.

 County Court properly denied the motion.  Bialostok does not apply retroactively to pen register surveillance, including the surveillance in the instant case, conducted prior to February 25, 1993, the date on which Bialostok was decided (see, People v. Martello, 93 N.Y.2d 645, 648, 695 N.Y.S.2d 525, 717 N.E.2d 684).   Thus, there is no merit to the contention that the conviction is supported by illegally obtained evidence.   Further, although sufficient facts appear on the trial record to have permitted adequate appellate review of the contention that defendant was denied effective assistance of counsel, he unjustifiably failed to raise that contention on his appeal from the judgment of conviction (People v. Smith, 209 A.D.2d 996, 622 N.Y.S.2d 163, lv. denied 85 N.Y.2d 914, 627 N.Y.S.2d 337, 650 N.E.2d 1339) (see, CPL 440.10[2][c];  People v. Orr, 240 A.D.2d 213, 214, 659 N.Y.S.2d 1, lv. denied 90 N.Y.2d 942, 664 N.Y.S.2d 760, 687 N.E.2d 657;  People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, lv. denied 76 N.Y.2d 796, 559 N.Y.S.2d 1001, 559 N.E.2d 695).

Order unanimously affirmed.

MEMORANDUM: