People v. Vega

• Decision Date: 19 January 1976
• Citation: 51 A.D.2d 33,379 N.Y.S.2d 419
• Parties: The PEOPLE, etc., Respondent, v. Louis VEGA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 419

379 N.Y.S.2d 419

51 A.D.2d 33

The PEOPLE, etc., Respondent, v. Louis VEGA, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 19, 1976.

William J. Gallagher, New York City (Joel L. Blumenfeld, New York City, and Pauline A. Mullins, of counsel), for appellant.

Nicholas Ferraro, Dist. Atty., Kew Gardens (Kerry J. Katsorhis, Kew Gardens, of counsel, Richard Lurye, trial preparation assistant), for respondent.

Before RABIN, Acting P.J., and HOPKINS, MARTUSCELLO, CHRIST and SHAPIRO, JJ.

SHAPIRO, Justice.

The defendant ¹ appeals from an order of the Supreme Court, Queens County, dated June 25, 1975, which denied his motion to vacate a prior ex parte order directing that he be turned over to the District Attorney of Queens County to have his beard removed and that thereafter he be placed in a lineup to be viewed by certain witnesses to a number of robberies.

THE ISSUE.

This appeal raises three questions: (1) May a Justice sitting in the Criminal Term of the Supreme Court in Queens County direct a person who is not named as a defendant in an accusatory instrument charging him with the commission of a crime in Queens County to turn himself over to the District Attorney of that county for the purpose of having his beard removed prior to his being placed in a lineup for possible identification by witnesses as the perpetrator of two robberies in that county? (2) May that court order him placed in a lineup prior to his arrest or to the issuance of an accusatory instrument against him charging him with the commission of a crime in Queens County? (3) Because the defendant is incarcerated in another county for a crime allegedly committed by him in that county, may he--without being arrested for the Queens County crime or being charged there by any accusatory instrument--be ordered to be placed in a lineup in Queens County?

PRIOR PROCEEDINGS.

Prior to the filing of this appeal, the defendant's attorney brought an article 78 proceeding in this court to prohibit the enforcement of the order here under review (Matter of Blumenfeld v. Dubin, 49 A.D.2d 593, 371 N.Y.S.2d 133). The respondent in that proceeding was the Justice who issued this order. This court dismissed the petition in that proceeding, saying (p. 594):

'As the petitioner has neither been arrested nor indicted, and as no accusatory instrument has been filed against him, the proceeding is 'essentially civil in character' and the order of June 25, 1975 is appealable (see Matter of District Attorney of Kings County v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127). Therefore, prohibition to prevent the enforcement of the prior order will not lie (CPLR 7801, subd. 1). In dismissing the petition, we do not reach the merits. Our disposition is without prejudice to an application by petitioner for a stay in the event that the petitioner appeals and applies for such relief.' ²

THE FACTS.

The defendant is confined in the Bronx House of Detention in connection with an offense unrelated to the robberies in Queens County which gave rise to the order appealed from. On May 5 and 12, 1975 the defendant was identified by four persons (from photographs) as the perpetrator of the Queens County robberies. The photographs showed the defendant without a beard. On May 23, 1975, when the defendant was placed in a lineup with others who also wore beards, the persons who had identified him from the photographs were unable to identify him.

On May 30, 1975 the District Attorney of Queens County obtained an ex parte order Inter alia directing the defendant to be turned over to him for the purpose of conducting a lineup and that the defendant's beard be removed prior to his appearance in the lineup. The defendant's motion to vacate that order, which was denied, is the subject matter of this appeal.

THE LAW.

In Matter of District Attorney of Kings County v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127 this court (Martuscello, J. dissenting) held that an order of the type here under attack is appealable; that the proceeding, despite its being captioned as a criminal matter, was 'essentially civil in character' ³ and that a Criminal Term of the Supreme Court in Kings County had the power to compel certain respondents who were neither in custody nor defendants under an accusatory instrument to supply the Kings County District Attorney with exemplars of their handwriting in connection with his investigation of a suspected insurance fraud involving forgery as an apparent element of a larcenous scheme. Although not all of the members of this court are in accord with the decision in that case, the problem here is essentially different in scope, for it requires our consideration of whether the right not to have one's facial hair shaved (when one is not charged with a crime) is of constitutional dismensions.

The majority in the Angelo G. case (supra) did not affirmatively pass on the question of whether the Criminal Term had the power to issue the order sought by the prosecutor, absent an arrest of the respondent. They simply rejected the District Attorney's claim that the order was not appealable, and then went on to deal with the question of whether the order under review violated the Fourth or Fifth Amendment rights or the Fourteenth Amendment due process rights of the respondents. It ruled that there was no violation of the Fourth Amendment because there was probable cause, evinced by a factual showing to the court, for the relief sought. It found the Fifth Amendment ban on self incrimination inapplicable on the ground that the relief sought in no way involved the compelling of communications or testimony, but rather made the respondents the source of real or physical evidence, an action which does not violate the constitutional ban. They held that the due process requirement was satisfied because the respondents had been served with notice of the application and the supporting papers and had been given the opportunity to oppose the application and to submit any grounds of opposition to the court. It therefore affirmed the order appealed from.

In contrast to the facts in Angelo G. (supra), we are not here dealing with fingerprinting, measurements, writing or speaking for identification, appearing in court, standing, assuming a stance, walking or making a particular gesture. Nor are we dealing with the taking of a blood sample (see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908). We are dealing with a procedure which would deprive the defendant of his constitutionally protected right to determine his personal appearance, a right which various lower Federal courts have placed either within the penumbra of the First Amendment freedom of speech or within the Ninth Amendment rights retained by the people (see Breen v. Kahl, 7 Cir., 419 F.2d 1034; Bishop v. Colaw, 8 Cir., 450 F.2d 1069; Arnold v. Carpenter, 7 Cir., 459 F.2d 939. Other courts have based the right on the 'liberty' assurance of the Fourteenth Amendment (Richards v. Thurston, 1 Cir., 424 F.2d 1281, 1285) or on the right "to be secure in one's person guaranteed by the due process clause" but having "equal protection" overlappings (Arnold v. Carpenter, supra, p. 941, n. 5; Massie v. Henry, 4 Cir., 455 F.2d 779, 783). The recognition of this constitutionally-protected right has been followed by holdings that the State bears the burden of establishing substantive justification for any action if may impose which limits that right (Crews v. Cloncs, 7 Cir., 432 F.2d 1259, 1264; Richards v. Thurston, 1 Cir., 424 F.2d 1281, Supra; Breen v. Kahl, 7 Cir., 419 F.2d 1034, cert. den. 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268; Lindquist v. City of Coral Gables, D.C., 323 F.Supp. 1161).

Another distinction between the action sought to be taken here, the compulsory shaving of the defendant's beard prior to his appearance in the lineup, and the requirement of provision for the furnishing of a handwriting exemplar in the Angelo G. (supra) case, is that the latter, since it involves no Alteration of the physical appearance of the suspect, is like standing, assuming a stance, walking or making a particular gesture. Forcible removal of a beard, by contrast, imposes on the suspect a physical change in his appearance which denies him the right to an immediate return to the form of facial hair which he wore prior to his appearance in the lineup. This distinction has been recognized (cf. Crews v. Cloncs, 7 Cir., 432 F.2d 1259, 1264, Supra).

The case of Matter of Mackell v. Palermo, 59 Misc.2d 760, 300 N.Y.S.2d 459 is directly in point here. There I denied an application by the District Attorney for an order directing a suspect who was neither under arrest nor the subject of an accusatory instrument in Queens County to shave his beard for a police lineup so that he could be viewed in a lineup by potential witnesses. I noted (p. 765, 300 N.Y.S.2d p. 463) that the respondent was 'merely a suspect against whom the District Attorney has thus far established no probable cause warranting an arrest', and concluded that the court, in such a situation, was without power to issue the order sought by the District Attorney. I added (p. 765, 300 N.Y.S.2d p. 464):

'I have no doubt that if this respondent were walking the streets, I would have no authority, merely because the District Attorney suspected him of having committed a vicious crime, to order him into a lineup and to have his beard forcibly removed. I do not see that there is any legal distinction between that situation and the fortuitous circumstance that the respondent happens to be in custody on an entirely unrelated charge. That detention may deprive him of freedom of movement, but it does not destroy any of his other rights as an individual.'

CONCLUSION.

If the District Attorney has probable cause sufficient to sustain an order invading the defendant's constitutional right to determine his facial appearance, he has sufficient probable cause to have ...