People v. Magaril

Judgment, Supreme Court, New York County, rendered on March 18,1971, unanimously affirmed. No opinion. Concur— Stevens, P. J., McGivern, Kupferman and Capozzoli, JJ.; Murphy, J., concurs in the following memorandum: I concur solely on the ground that there was sufficient probable cause for the arrest and for the incidental search (People v. Malinsky, 15 N Y 2d 86; People v. Coffey, 12 N Y 2d 443; People v. Castro, 29 N Y 2d 324) without use of the pen register ” (a mechanical device attached to a given telephone to determine the number dialed) which I would hold to be an unlawful interception of a wire communication (U. S. Code, tit. 18, § 2510 et seq.; United States v. Dote, 371 F. 2d 176; United States v. Caplan, 255 F. Supp. 805; United States v. Covello, 410 F. 2d 536, cert, den., 396 U. S. 879). Respondent’s argument that no communication was disclosed by such device, since the “ pen register ” disconnects as soon as the number is dialed, is not persuasive. As was perceptively observed in United States v. Caplan (supra, p. 808): “Paul Revere’s associate, who hung a lantern in the Old North Church, would hardly have been exculpated at a trial for treason if he argued that he was not sending a communication, but was only illuminating the belfry.” On constraint of the recent decision of the Court of Appeals in People v. Castro (supra) I would also agree that disclosure of the informant was not required under the circumstances here presented.