People v. Martello, 99 N.Y. Int. 0113 (July 6, 1999).




1. Whether People v. Bialostok, holding that a pen register device capable of being adapted to monitor telephone conversations should be treated as an eavesdropping device, should be applied retroactively, and govern all pen register surveillance, including the case on appeal conducted by law enforcement personnel before the Bialostok ruling.

2. Whether legislative enactments after the Bialostok decision caused Bialostok to cease to be applicable to this case.


1. No. This is a state issue and, analyzing the factors to be considered under state law, including purpose, reliance, and the effect on administration of justice, retroactivity should not occur.

2. Yes. Criminal Procedure Law article 705 addressed pen registers and also modified the definition of eavesdropping in CPL article 700.05(1) to exclude the use of pen register devices when authorized by CPL article 705.


The defendant, Paul Martello, was convicted of attempted coercion in the first degree and criminal mischief in the second degree. The People presented evidence against the defendant at trial that was obtained through electronic telephonic eavesdropping by the government. The applications for the eavesdropping warrants included information derived from prior governmental pen register surveillance. This surveillance was authorized by warrants issued pursuant CPL 705.10 and was completed before the Bialostok decision.

Before his trial, the defendant moved to suppress evidence received from electronic eavesdropping because, he argued, the warrants allowing the eavesdropping were inextricably linked to the information received by pen register use. The defendant argued that, by Bialostok, since the pen register devices were able to monitor telephone conversations, they must be considered eavesdropping devices. Therefore, the defendant claimed, warrants must be issued under the stringent probable cause requirements of CPL 700.15 and the Fourth Amendment of the United States Constitution, not the "reasonable suspicion" standard of CPL 705.10, under which the warrants were obtained. The Supreme Court denied suppression of the People's evidence, accepting the argument that Bialostok should be applied to warrants prospectively only. The Appellate Division unanimously affirmed, agreeing that Bialostok is subject to the State's flexible approach to retroactivity and not the Federal rule of automatic retroactivity applicable to pending cases.

This Court agreed with the People that there were no federal issues involved and, therefore, the state approach to retroactivity should be applied. First, the Court decided that Bialostok represented a new rule of law, not just established principles being applied in a new situation. Being a new rule, retroactivity analysis must be made following the factors in the Pepper-Mitchell cases. The three factors are: 1) the purpose to be served by the new rule, 2) the extent of reliance on the old rule, and 3) the effect on the administration of justice of retroactive application.

First, the purpose of the rule was found to be unrelated to the fact finding process. It was intended to deter the government from using unauthorized electronic eavesdropping, but had little or no relation to the reliability of the evidence obtained. Second, law enforcement officials had extensively relied on the State's previous rule of law stating that no warrant on probable cause was needed for pen register surveillance. Third, because of the extensive reliance, retroactive application would be a substantial burden on the administration of justice and could affect many cases currently pending and, additionally, would not serve as a deterrent to improper practice or have any beneficial effect on the honesty of the truth-seeking process.

The Court also decided that Bialostok was not controlling on the facts and circumstances of the case. When Bialostok was decided, there was no statute covering pen register usage. The Legislature then passed CPL 705, which allowed judges to issue pen register orders on reasonable suspicion. In this case the CPL 705 procedures were followed and so it was correct for suppression to be denied. The definition of eavesdropping in CPL 700.05(1) was also modified to exclude pen register devices authorized by CPL 705.