People v. Gigante

190 A.D.2d 587, 593 N.Y.S.2d 1018, 1993 N.Y. App. Div. LEXIS 1548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1993
• Status: Published

Opinion

— Appeal from judgment, Supreme Court, New York County (Harold Rothwax, J., on suppression motion; Edwin Torres, J., at trial), rendered May 23, 1985, which convicted the defendant, upon a nonjury verdict, of conspiracy in the fifth degree, five counts of promoting gambling in the second degree and four counts of possession of gambling records in the second degree, and sentenced him to a fine of $500 and a term of imprisonment of six months on the conspiracy count, to run consecutively with consecutive sentences of thirty days’ imprisonment or a fine of $500 on each of the remaining counts, held in abeyance, that portion of the order summarily denying the defendant’s motion to suppress conversations allegedly intercepted by the use of a modified pen register is unanimously reversed, on the law, and the matter is remitted for a hearing to determine whether a modified pen register was used to conduct illegal electronic eavesdropping and, if so, whether any subsequently seized evidence was tainted by the use of such device.

The appeal is held in abeyance and the matter is remitted for a hearing for the reasons stated in People v Gilpin (190 AD2d 585 [decided herewith]). Concur — Murphy, P. J., Milonas, Rosenberger and Kassal, JJ.