La Rocca v. Lane

• Citation: 47 A.D.2d 243,366 N.Y.S.2d 456
• Parties: Father Vincent LA ROCCA of Counsel to William Gallagher, Attorney-In-Charge, the Legal Aid Society, Criminal Defense Division, Respondent, v. Morgan LANE, Judge of the Criminal Court of the City of New York.
• Decision Date: 07 April 1975
• Court: New York Supreme Court Appellate Division

Page 456

366 N.Y.S.2d 456

47 A.D.2d 243

Father Vincent LA ROCCA of Counsel to William Gallagher Attorney-In-Charge, the Legal Aid Society Criminal Defense Division, Respondent, v. Morgan LANE, Judge of the Criminal Court of the City of New York.

Supreme Court, Appellate Division, Second Department.

April 7, 1975.

Louis J. Lefkowitz, Atty. Gen., New York City (Robert S. Hammer and Samuel A. Hirshowitz, New York City, of counsel), for appellant.

William J. Gallagher, New York City, and Mario Matthew Cuomo, Brooklyn (Eric A. Seiff, Pierce Gerety, Jr., New York City, and John E. H. Stackhouse, Brooklyn, of counsel), for respondent.

Aaron Nussbaum, Brooklyn, for Kings County Criminal Bar Ass'n, Inc., amicus curiae, for appellant.

Ernest J. Bertolotti, New York City, for Ad Hoc Committee for the Defense of Clerical Rights (Michael T. Sullivan, John E. Pearson Michael S. O'Rourke, Scott E. Mollen and Martin J. Kilkeary, New York City, of counsel), amicus curiae.

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM and SHAPIRO, JJ.

HOPKINS, Acting Presiding Justice.

The petitioner has been an ordained Roman Catholic priest for 25 years. He was admitted to the Bar in 1973. He is employed as an attorney by the Legal Aid Society and was assigned to represent Cecilia Daniels, a defendant under criminal charges in the Criminal Court of the City of New York. He appeared before the court wearing his clerical collar, prepared to try the case before a jury on behalf of his client. The assistant district attorney objected to the appearance by the petitioner in the garb of a Roman Catholic priest. After considerable colloquy, during which the petitioner maintained both the right of the defendant to be represented by him in his clerical habit and his right to so appear, the trial court directed him to remove his clerical collar before proceeding further in the trial.

The court then adjourned the case in order that its ruling might be reviewed. The petitioner thereafter brought this CPLR article 78 proceeding in the nature of prohibition to restrain the Criminal Court from preventing him from trying the case before the jury wearing a clerical collar. The Criminal Term of the Supreme Court ¹ has granted the petitioner's application and has prohibited the Criminal Court from enforcing its order (La Rocca v. Lane, 77 Misc.2d 123, 353 N.Y.S.2d 867). We reverse and dismiss the proceeding. The Criminal Court did not act improvidently in directing the petitioner not to appear in a clerical collar and no constitutional rights of the petitioner or his client were violated by the direction.

The Criminal Court, in making its direction, was motivated by its concern that the members of the jury might be prejudiced by the appearance of the petitioner in his clerical garb and that, accordingly, a fair trial could not be conducted. The Criminal Term, on the other hand, found that no bias might be presumed, that by the Voir dire the presence of bias might be detected and eradicated and that the defendant in the criminal case is entitled to the assistance of counsel of her own choice. These conflicting views, together with the constitutional right under the First Amendment raised by the petitioner, compel us to weigh issues of great importance within our system of justice.

The issues, as we see them, are threefold: (1) the right of the defendant in a criminal case to be represented by counsel attired in priestly garb, (2) the right of the petitioner under the First Amendment to appear in court as an attorney so attired before a jury, and (3) the power of the court to regulate the dress of an attorney.

I.

The RIGHT of the DEFENDANT.

We first note that the defendant in the criminal case is represented by the Legal Aid Society, not by the petitioner. The petitioner, as an attorney employed by the Legal Aid Society, was assigned by it to represent the defendant. The defendant, as an indigent, was entitled to the assistance of counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), even though the crime charged was a misdemeanor (County Law, § 722--a). The right to counsel is not absolute (People v. Brabson,9 N.Y.2d 173, 180, 212 N.Y.S.2d 401, 406, 173 N.E.2d 227, 231); thus, the defendant could not force the court to assign particular counsel, even within the Legal Aid Society's office (People v. Howard, 150 Cal.App.2d 428, 310 P.2d 120; People v. Cox, 22 Ill.2d 534, 177 N.E.2d 211, cert. den. sub nom. Cox v. Illinois, 374 U.S. 855, 83 S.Ct. 1925, 10 L.Ed.2d 1076; cf. State v. Rush, 46 N.J. 399, 217 A.2d 441; People v. Norman, 252 Cal.App.2d 381, 60 Cal.Rptr. 609, cert. den. sub nom. Norman v. California, 391 U.S. 923, 88 S.Ct. 1819, 20 L.Ed.2d 661; Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805; Baker v. People, S.D.N.Y., 299 F.Supp. 1265). The court's duty is simply to select competent counsel within the provisions of the statute (County Law, § 722; see 21 Am.Jur.2d, Criminal Law, § 319).

The defendant's constitutional right to assistance of counsel is satisfied when he is represented by competent counsel. His right does not extend to representation by the petitioner, whether in clerical garb or not. In the event, then, that the petitioner was compelled for reasons grounded on religious belief or for other reasons to request to be relieved of his assignment, the defendant could not on account of her preference for the petitioner require the court to continue his representation. Indeed, in the context of this case, the Legal Aid Society would simply assign another attorney on its staff to the defendant.

There is, in brief, no infringement of the defendant's right to counsel by the action of the Criminal Court.

II.

The PETITIONER'S RIGHTS UNDER the FIRST AMENDMENT.

The free exercise of religious beliefs has been surrounded by special protection under the First Amendment. Though it is in many ways a kind of personal expression, the intrusion into which by State action is forbidden, the right of individual worship is not altogether beyond regulation by the State. The freedom to practice one's religion does not, for instance, deprive the State from compelling the individual's testimony before the grand jury (People v. Woodruff, 26 A.D.2d 236, 272 N.Y.S.2d 786, affd. 21 N.Y.2d 848, 288 N.Y.S.2d 1004, 236 N.E.2d 159). The State Constitution, indeed, states that 'the liberty of conscience hereby secured shall not be so construed as to * * * justify practices inconsistent with the peace or safety of this state' (N.Y.Const. art. I, § 3).

Of course, the First Amendment takes precedence over our State Constitution (Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213). Hence, it is the Federal standard to which we must look in determining whether the petitioner's right of religious freedom has been violated by the order of the Criminal Court. The Federal standard requires us to find that any incidental burden on the petitioner's exercise of his religion must be justified by a compelling State interest in the regulation of a subject within the State's power to regulate (Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965; Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 32 L.Ed.2d 15). A balancing of the particular values becomes, therefore, the mechanism whereby the constitutionality of the regulation is decided. In striking the balance, it has been suggested by a leading commentator that three elements are involved--first, the importance of the secular value underlying the regulation; second, the degree of necessity that the regulation bears to that value; and third, the impact that an exemption for religious reasons would have on the program carrying out the regulation (Giannella, Religious Liberty, Nonestablishment and Doctrinal Development, Part 1., The Religious Liberty Guarantee, 80 Harv.L.Rev. 1381, 1390). To this should be added the admonition spoken in the Supreme Court decision upholding laws abolishing polygamy that, although laws 'cannot interfere with mere religious belief and opinions, they may with practices' (Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244).

It should be noted that the petitioner claims that he is under instructions from his bishop to wear his collar and that he fulfills his right of religious worship by doing so in the performance of his duties as an attorney. On the other hand, it is beyond question that the petitioner's dress is regulated by the court only when he is performing his duties as an attorney in a trial before a jury. The court did not undertake to prohibit him from wearing the clerical collar as a spectator, as a witness, or as a party. Undoubtedly, the relationship between the court and an attorney is more intimate and more subject to regulation than is the status of a spectator, witness, or party, although certainly there is residual power in the court even to regulate that status (American Bar Association Project on Minimum Standards for Criminal Justice, The Function of the Trial Judge, §§ 1.1, 5.3, 6.3, 6.8, 6.10 (Tentative Draft)).

We turn, then, to a consideration of the secular value involved. There is hardly a stronger interest within the government structure than the preservation of the right to a fair trial, both by the accused and by the prosecution. The trial judge's function largely rests in his duty to insure that this right is enforced and maintained. Even with respect to the constitutional right of the free press, the right of the trial judge to control the proceedings within his courtroom may be preeminent (A.B.A. Project on Minimum Standards for Criminal Justice, Fair Trial and Free Press, § 3.5, subd. (a) (Tentative Draft); cf. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769).

Concerning the degree of necessity which the regulation bears toward the value, it is manifest that a fair trial is linked closely to the conduct of the...