author: Per Curiam. Alexander, J.

text:
    Ernest Winkler et al., Appellants, v Joseph E. Spinnato, Individually and as Fire Commissioner of the City of New York, et al., Respondents, and State of New York, Intervenor-Respondent.
    Argued September 7, 1988;
    decided October 20, 1988

      POINTS OF COUNSEL

      Joseph O. Giaimo for appellants.
    I. There is no rational basis for the amnesty clause which violates the Equal Protection Clause. (Maresca v Cuomo, 64 NY2d 242; Bunyan v Camacho, 770 F2d 773; Shapiro v Thompson, 394 US 681; Zobel v Williams, 457 US 55; United Bldg. & Constr. Trades v Mayor, 465 US 208.) II. The court below should not have created a rational basis for the amnesty clause. (United States v Miller, 376 F2d 72, 386 US 911; Kruger v Page Mgt. Co., 105 Misc 2d 14; Young v Town of Huntington, 88 Misc 2d 632; Rankin v Shanker, 23 NY2d 111; Taray v Moldovanyi, 478 F Supp 1120; Babigan v Wachtler, 133 Misc 2d 111; Hezekiah v Williams, 106 Misc 2d 407.) III. The amnesty clause violates the Equal Protection and Due Process Clauses because it is invidiously discriminatory. (Ciechon v City of Chicago, 686 F2d 511; People v Illardo, 97 Misc 2d 294; Matter of Abrams v Bronstein, 33 NY2d 488; Piper v Supreme Ct., 723 F2d 110, 470 US 274; Phelan v City of Buffalo, 54 AD2d 262.) IV. Appellants have a fundamental right to their civil service jobs. (Phelan v City of Buffalo, 54 AD2d 262; United Bldg. & Constr. Trades v Mayor, 465 US 208; C.D.R. Enters. v Board of Educ., 412 F Supp 1164, affd sub nom. Lefkowitz v C. D. R. Enters., 429 US 1031; Graham v Richardson, 403 US 365; Sugarman v Dougall, 413 US 634; W.C.M. Window Co. v Barnardi, 730 F2d 486; Baldwin v Montana Fish & Game Commn., 436 US 371; Helminski v Supreme Ct., 603 F Supp 401; White v Thomas, 660 F2d 680.)

      Peter L. Zimroth, Corporation Counsel (Ronnie Dane and Pamela Seider Dolgow of counsel), for respondents.
    Section 3 (19) and section 30 (5-a) of the Public Officers Law do not deny to plaintiffs the equal protection of the laws, the privileges and immunities of citizens or due process of law. (McDonald v Board of Election, 394 US 802; Lighthouse Shores v Town of Islip, 41 NY2d 7; McGowan v Maryland, 366 US 420; Massachusetts Bd. of Retirement v Murgia, 427 US 307; United Bldg. & Constr. Trades v Mayor, 465 US 208; C.D.R. Enters. v Board of Educ., 412 F Supp 1164, affd sub nom. Lefkowitz v C. D. R. Enters., 429 US 1031; Vance v Bradley, 440 US 93; People v Drayton, 39 NY2d 580; Maresca v Cuomo, 64 NY2d 242, 474 US 802; McGinnis v Royster, 410 US 263.)

      Robert Abrams, Attorney-General (Christopher Keith Hall, O. Peter Sherwood and Lawrence S. Kahn of counsel), for intervenor-respondent.
    I. Requiring firefighters not resident in this State to be residents of the State and locality is consistent with equal protection and the right to travel. (Zobel v Williams, 457 US 55; Personnel Adm’r of Mass. v Feeney, 442 US 256; Schweiker v Wilson, 450 US 221; McDonald v Board of Election, 394 US 802; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Weinberger v Salfi, 422 US 749; Korematsu v United States, 323 US 214; San Antonio School Dist. v Rodriguez, 411 US 1; Massachusetts Bd. of Retirement v Murgia, 427 US 307; Attorney-General of N. Y. v Soto-Lopez, 476 US 898.) II. Requiring firefighters to be residents does not deny plaintiffs any of the privileges and immunities of citizenship. (Massachusetts Bd. of Retirement v Murgia, 427 US 307; Supreme Ct. v Piper, 470 US 274.) III. The amendments are consistent with due process. (Detroit Police Officers Assn. v City of Detroit, 405 US 950.)
   OPINION OF THE COURT

Per Curiam.

Relying on the Equal Protection Clauses of both the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, §§ 6, 11), as well as the Privileges and Immunities Clause of the Federal Constitution (US Const, art IV, §2, cl [1]), plaintiffs challenge the constitutionality of Public Officers Law § 3 (19) and § 30 (5-a) (hereinafter the amendments). The amendments require a public officer residing outside New York State to move to one of the lawfully designated counties within one year from the effective date; public officers residing outside one of the designated counties, but within the State, may remain so domiciled but if they move, it must be to one of the designated counties (see, Public Officers Law § 3 [19]; § 30 [5-a]). Henceforth, all those accepting employment as public officers must conform to both State and local residency requirements. We hold that the State of New York may constitutionally draw a distinction between firefighters who have violated only local residency requirements and those who have violated both local and State residency requirements.

I.

Since 1829, New York has required public officers to be residents of the State (Rev Stat of NY, part I, ch 5, tit 6, § 1 [1829]). Public officers of local governments have also been required to be residents of the locality by which they are employed (Gen Laws of NY, ch 7, art I, § 3, L 1892, ch 681). After many years of not enforcing the statutory requirements, in 1986 the Fire Department passed orders (order No. 41, dated Apr. 2, 1986, and order No. 46, dated Apr. 11, 1986) to enforce the residency requirements. After these orders, the amendments were passed as a form of amnesty.

The plaintiffs in this action are firefighters employed by the Fire Department of the City of New York who do not live within the State of New York. They challenge the amendments on the ground that the amendments contain a distinction between two classes of residency law violators based solely upon the criterion of State residence. Plaintiffs challenge the constitutionality only of the amendments, not the residency requirement per se (see, McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645; Detroit Police Officers Assn. v City of Detroit, 385 Mich 519, 190 NW2d 97, appeal dismissed for lack of substantial Federal question 405 US 950; Woods v City of New York, 129 Misc 2d 851, mod on other grounds 119 AD2d 469, affd 69 NY2d 771). The Appellate Division upheld the amendments concluding that the distinction between the two groups is "founded upon a valid exercise of the State’s authority to require its own employees, or the employees of any of its political subdivisions, to reside within this State” (134 AD2d 66, 68). We agree.

II.

Plaintiffs’ argument based on the Privileges and Immunities Clause is without merit. Plaintiffs have no "fundamental right”, within the purview of the Privileges and Immunities Clause, to be employed as New York City firefighters (see, United Bldg. & Constr. Trades v Mayor, 465 US 208, 219; Massachusetts Bd. of Retirement v Murgia, 427 US 307; McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645, supra), since public employment is not a privilege which " 'bear[s] upon the vitality of the Nation as a single entity’ ” (Matter of Gordon, 48 NY2d 266, 271). Therefore, the Privileges and Immunities Clause affords them no protection here (Baldwin v Montana Fish & Game Commn., 436 US 371).

The challenge under the Equal Protection Clause of both the Federal and State Constitutions must also fail. Since plaintiffs are not a suspect class (Strauder v West Virginia, 100 US 303; Loving v Virginia, 388 US 1; Alevy v Downstate Med. Center, 39 NY2d 326, 334), and there is "no fundamental right to government employment for purposes of the Equal Protection Clause” (United Bldg. & Constr. Trades v Mayor, 465 US, at 219, supra), the amendments must be upheld so long as they are "based upon some conceivable and legitimate State interest” (Maresca v Cuomo, 64 NY2d 242, 250; see also, Woods v City of New York, supra).

The State’s long-standing interest in requiring its public officers to be State residents is understandable. It is without doubt that "[p]ublic employees who reside in New York are more likely, as a class, to spend their money in New York” (134 AD2d 66, 75), thereby returning an economic benefit to the society from whose public fisc the officers’ salaries are paid. In addition, State residents contribute more taxes to the State and its municipalities than do nonresidents who merely work within the State. Moreover, State residency requirements are premised on the belief that out-of-State residents do not have the same loyalty and commitment to the State as instate residents. Like all public employees, those receiving amnesty must be State residents. The State has, however, subordinated its local interest to a limited degree, to accommodate those in violation. In order to comply with the State residency requirement, out-of-State residents must move; inState residents, obviously, need not. Because out-of-State residents are already required to move, there is little reason to excuse them from moving into one of the lawfully designated counties. Because, on the other hand, in-State residents need not otherwise move, they are not being required to do so for the sole purpose of moving into a lawful county. But if they move from their current in-State residences, however, they, like out-of-State residents, must do so in compliance with the local residency law. This limited accommodation to those who already satisfy the State residency requirement and, therefore, do not have to move for that purpose, is rational and does not violate equal protection.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Alexander, J.

(dissenting). Because I believe that in requiring only out-of-State firefighters to move into a lawful county the State is unconstitutionally conferring a benefit on its established residents, I respectfully dissent.

New York requires public officers of local governments to be residents of both the State and the locality in which they are employed. (Public Officers Law § 3 [1]; § 30 [1] [d].) New York City firefighters, however, were permitted to live in one of six counties contiguous to New York City or in one of the counties within the City itself (together the lawful counties). (Public Officers Law § 3 [9]; § 30 [5].) When, in 1986, after many years of nonenforcement, the New York City Fire Department issued administrative orders enforcing these residency requirements, the Legislature amended Public Officers Law §§ 3 and 30 by adding § 3 (19) and § 30 (5-a) (the amendments). While requiring out-of-State firefighters to move into a lawful county, the amendments exempt the State resident firefighters from this local residency requirement. Specifically, the amendments provide that State resident firefighters currently in violation of the local residency requirement need not comply with that requirement until such time as they may choose to move from their present residences. Out-of-State firefighters, however, are not so exempted; instead they are required to move into a lawful county within one year of the effective date of the amendments. Although the amendments treat all firefighters equally in that their initial move must be to a lawful county, plainly it is only the out-of-State firefighters who must comply with the local residency requirement.

These amendments confer a benefit on State resident firefighters not conferred on out-of-State firefighters and can survive the instant equal protection challenge only if the resident/nonresident classification is rationally related to a legitimate State interest. (McDonald v Board of Election, 394 US 802, 809; Maresca v Cuomo, 64 NY2d 242, 250.) Notwithstanding the position advanced by the majority, I am unable to agree that these amendments rationally serve a legitimate State interest. It is true that a State has a legitimate interest in requiring its public officers to be State residents; State residency requirements benefit the State financially and, in the case of firefighters, encourage public employees skilled in emergency rescue services to spend more time within the State. This State interest, however, is advanced by requiring firefighters to live in the State; it is not rationally served by requiring that the firefighters live in any particular counties within the State. Similarly, while the lawful counties have a legitimate interest in requiring that New York City firefighters reside there, that interest is not rationally served by imposing the local residency requirement on only some New York City firefighters. Thus, the challenged amendments would be constitutional if they required the out-of-State firefighters to move into the State or if they required all New York City firefighters to move into a lawful county (McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645, 646). Neither the State nor the local interest, however, is rationally served by requiring only the out-of-State firefighters to move into the lawful counties.

The majority concludes that since the State has chosen to impose both State and local residency requirements, it may "subordinate!] its local interest” and require only the out-of-State firefighters, who violated both residency requirements, to move into a lawful county. The justification for this differential treatment is the fact that the out-of-State firefighters are already required to move to satisfy the State residency requirement. This fact, however, is irrelevant to the the choice of the particular county into which they must move — a choice that is of obvious significance to all the firefighters who violated the local residency requirement for, among other reasons, the opportunity to obtain more affordable housing.

The majority’s reasoning, then, begs the question posed in this equal protection challenge — namely, whether the amendments, which benefit the State resident firefighters by exempting them from the local residency requirement while imposing that requirement on the out-of-State firefighters, are rationally related to a legitimate State interest. A State’s interest in conferring a benefit on established State residents is not a legitimate State interest for purposes of the equal protection analysis in this case. The Supreme Court has held that a State cannot constitutionally confer a benefit upon some State residents and not others solely on the basis of established State residency at a past point in time (Zobel v Williams, 457 US 55, 63-64; id., at 68 [Brennan, J., concurring]; see also, Shapiro v Thompson, 394 US 618, 632-633). Although Zobel and Shapiro involved distinctions between old and new State residents, rather than a distinction between residents and nonresidents, the reasoning of those cases is equally applicable here: "[Discrimination on the basis of residence must be supported by a valid state interest independent of the discrimination itself.” (Zobel v Williams, 457 US, at 70, supra [Brennan, J., concurring].) Therefore, New York State may not constitutionally benefit only its State resident firefighters solely because they were State residents on the date that the amendments became effective.

Accordingly, I would reverse the Appellate Division, declare that Public Officers Law § 3 (19) and § 30 (5-a) violate the Equal Protection Clauses of the Federal and State Constitutions, and enjoin the defendants from dismissing plaintiffs on the basis of their noncompliance with those provisions.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Alexander dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Charles Anthony Thompson, Respondent.
    Argued September 9, 1988;
    decided October 20, 1988

      POINTS OF COUNSEL

      Sol Greenberg, District Attorney (Cheryl F. Coleman of counsel), for appellant.
    The court below erroneously determined that forcible compulsion was lacking as a matter of law. (People v Coleman, 42 NY2d 500; People v Yannucci, 283 NY 546; People v Tas, 51 NY2d 915; People v McKinley, 124 AD2d 752; People v Bercume, 38 AD2d 356; People v Fraczak, 103 Misc 2d 388; People v Bink, 84 AD2d 607; People v Gladman, 41 NY2d 123; People v Irby, 47 NY2d 894; People v Donovan, 53 AD2d 27.)

      Lewis B. Oliver, Jr., and Harriet B. Oliver for respondent.
    I. The court below correctly determined that the evidence under the first and second counts of the indictment was insufficient as a matter of law because, taking People’s evidence presented in its most favorable light, there was insufficient evidence to make out a threat of "immediate” injury. There was also insufficient evidence to make out a threat of "serious” physical injury. (People v Jimenez, 55 NY2d 895; Matter of Phillip A., 49 NY2d 198; People v Watson, 45 NY2d 867; People v McDowell, 28 NY2d 373; People v Cicciari, 90 AD2d 853; People v Gomez, 112 AD2d 445; People v Bermudez, 109 AD2d 674; People v Randall, 86 AD2d 918; People v Bink, 84 AD2d 607; People v McKinley, 124 AD2d 752.) II. The first and second counts of the indictment charging sodomy in the first degree are insufficient on their face because they fail to allege forcible compulsion consisting of threatening to inflict "immediate” death or "serious” physical injury. The two counts allege only "threatening” to cause "injury” which is jurisdictionally defective. (People v Morris, 61 NY2d 290; People v Haff, 47 NY2d 695; People v Iannone, 45 NY2d 589; People v Jackson, 88 AD2d 604; People v McDowell, 28 NY2d 373; People v Rojas, 61 NY2d 726; People v Barlow, 88 AD2d 668.) III. The trial court committed reversible error under the first two counts of the indictment and denied defendant due process and a fair trial by failing to charge the jury with respect to the definition of "serious physical injury” which is a necessary element of sodomy in the first degree. (People v Kiminski,
      58 NY2d 886; People v Cobos, 57 NY2d 798; People v Davis, 96 AD2d 680; People v Almond, 37 AD2d 571; People v Wrench, 34 AD2d 1055; People v Lupo, 305 NY 448.) IV. The trial court committed reversible error with respect to the first and second counts of the indictment charging sodomy in the first degree by excluding as hearsay, testimony that complainant, while still in the Albany County jail, told a friend that he had engaged in deviate sexual intercourse with Roger Waddell and that he had attempted the same with defendant. Such testimony was admissible for the purpose of impeaching complainant’s credibility and as evidence that complainant was not in a fearful state of mind. (People v Dackowski, 50 NY2d 962; People v Wheeler, 50 AD2d 1089; People v Ortiz, 119 Misc 2d 572; People v Crimmins, 36 NY2d 230; People v Ricco, 56 NY2d 320; People v Boyling, 84 AD2d 892.) V. The trial court committed reversible error and violated the Sixth Amendment and due process of law by refusing to allow the defense to cross-examine Joseph Sheedy with respect to complainant’s use of drugs in the Albany County Jail. (People v Gissendanner, 48 NY2d 543; Davis v Alaska, 415 US 308; Douglas v Alabama, 380 US 415; People v Acomb, 87 AD2d 1; United States v Alvarez-Lopez, 559 F2d 1155; People v Carter, 86 AD2d 451; People v Standard, 42 NY2d 74.) VI. The trial court erred in ruling that the prosecution could inquire into both the conviction and the underlying act of the 1971 manslaughter conviction because of the possible prejudicial effect on defendant, the lapse of time since the conviction and the result that Thompson was deterred from testifying in his own behalf. (People v Williams, 56 NY2d 236; People v Mayrant, 43 NY2d 236; People v Sandoval, 34 NY2d 371; People v Cooke, 101 AD2d 983; People v Ellis, 94 AD2d 652; People v Wood, 94 AD2d 814.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Defendant was convicted, after a trial by jury, of two counts of first degree sodomy (Penal Law § 130.50 [1]). The Appellate Division reversed the judgment of conviction and remitted the matter for a new trial on the third degree sodomy counts not reached by the jury, on the ground that the People had. failed to adduce sufficient evidence of forcible compulsion. Specifically, the Appellate Division held that, because the encounter took place while defendant and the victim were separated by jail bars, the defendant’s threats to injure the victim or have others do so could not be carried out "immediately” and therefore did not constitute forcible compulsion as that term is defined in the Penal Law (§ 130.00 former [8]). We now reverse and remit to the Appellate Division for the exercise of its factual review powers and for the determination of other issues not reached on the appeal to that court.

I.

To determine whether a jury verdict is supported by legally sufficient evidence, a reviewing court must consider "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Bleakley, 69 NY2d 490, 495 [citing Cohen v Hallmark Cards, 45 NY2d 493, 499]). Thus, because the jury returned a guilty verdict, the evidence must be viewed by us in the light most favorable to the People. From that perspective, the trial evidence established the following.

The events in question took place on August 6, 1981, while defendant and the victim were both inmates at the Albany County jail. The victim, a 16-year-old male, had been in the jail slightly less than three weeks, awaiting disposition of charges that he had sold hashish. He occupied a cell in the first east tier of the jail, a portion of the jail reserved for unsentenced juveniles. The juvenile tier consists of 25 cells which open to a common walkway known as the bullpen. The cells are routinely unlocked during most of the day, so that the bullpen area is accessible to all inmates on the tier. Beyond the bullpen, and separated from it by a set of bars, is a parallel walkway referred to in the testimony as the catwalk. The bullpen and the catwalk each end in a locked gate, tended by a correction officer, which separate the tier from the rest of the jail. Jail policy prohibits adult inmates from entering the juvenile tier.

The defendant, a 35-year-old male, was housed in one of the adult tiers. He had spoken to the victim on three occasions prior to the August 6 incident, twice in the mess hall, where they engaged in conversation about their backgrounds, and once in or near the weight-lifting room, where defendant commented on the victim’s slight stature and demonstrated his own strength by lifting the victim over his head. The victim testified that he was about five feet, six inches tall and weighed approximately 120 pounds. He estimated that defendant was six-feet tall and weighed about 180 pounds.

Sometime between 11:00 a.m. and noon on August 6, defendant approached the correction officer on duty at the gate to the juvenile tier and asked to be permitted into the tier to speak to an inmate. Despite the policy prohibiting such access, defendant was admitted to the catwalk area. The guard then returned to his desk, from which point he was unable to view the tier.

Defendant called to the victim through the bars separating the catwalk from the rest of the tier. The victim exited his cell and approached the bars. Defendant then stated that he wanted the victim to perform an act of oral sex. When the victim refused, defendant issued the threats which are the focus of this appeal. According to the victim:

"[H]e started to threaten me and say he could have people kick my ass if I didn’t do it.

* * *

"He told me that anything could happen to me if I walked off the tier. It could happen anywhere, he said. I could get beat up anywhere, it could even be somebody on the tier if he wanted to.

* * *

"He said that he could put the word out on me if he wanted to and he could have anybody kick my ass.

* * *

"[H]e said it was a matter of trusting him and if I did it with him I wouldn’t have to worry about it. I wouldn’t have to be worried about being bothered again and if I didn’t do it, that, you know, the same thing would happen.

* * *

"He would make sure I would have a rough time while I was there.

* * *

"He just meant that, you know, he could have somebody kick my ass if he wanted to.” Another inmate on the tier testified that he viewed the incident and heard defendant state, "[I]f you don’t give me no piece of ass I’ll kick your ass.”

Following these threats, the victim complied with defendant’s requests that he submit to various acts of sodomy. Defendant renewed his threats between episodes. During the entire incident the two remained on opposite sides of the bars of the catwalk.

That afternoon the victim asked to be placed in protective custody, and the following day he reported the incident to officials. Defendant was charged in an indictment with two counts of first degree sodomy and two counts of third degree sodomy. Following a trial, a jury found defendant guilty of the two first degree counts but did not reach the third degree counts, pursuant to the court’s instructions.

II.

First degree sodomy, as charged in the indictment against defendant, occurs when the actor "engages in deviate sexual intercourse with another person * * * [b]y forcible compulsion” (Penal Law § 130.50 [1]). At the time of the alleged crime, forcible compulsion was defined as follows: "physical force which is capable of overcoming earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped” (Penal Law § 130.00 former [8]).

The Appellate Division concluded that defendant’s threats did not rise to the level of forcible compulsion because they were not "capable of immediately being carried out” (132 AD2d 885, 886). We note at the outset that, although it may not have been so intended, to the extent that this standard would relieve a defendant of criminal liability simply because he is, in fact, incapable of making good on his threats, it must be rejected.

As we stated in a similar situation, the inquiry required in determining whether threats amount to forcible compulsion is not what the defendant would or could have done, "but rather what the victim, observing [the defendant’s] conduct, feared [he] would or might do if [the victim] did not comply with [his] demands” (People v Coleman, 42 NY2d 500, 505). The proper focus is on the state of mind produced in the victim by the defendant’s conduct, because the sine qua non for criminal liability for sex offenses under our Penal Law is lack of consent, resulting from either forcible compulsion or incapacity to consent (see, Penal Law § 130.05).

The impossibility or improbability of the defendant’s assertions may be relevant considerations for the fact finder in determining whether the victim was actually placed in fear or whether the defendant intended such an effect. But the fact that a court may, in hindsight, determine that the threats were incapable of being executed cannot transform the victim’s submission to them into consent. As the drafters of the Model Penal Code noted, "It seems clear * * * that one who takes advantage of [a victim’s] unreasonable fears of violence should not escape punishment any more than a swindler who cheats gullible people by false statements which they should have found incredible. Neither the blameworthiness of the actor nor the gravity of the insult to the victim is ameliorated by a finding that the threat was implausible or that the actor lacked capacity to carry it out” (ALI, Model Penal Code and Commentaries § 213.1, at 310). For that reason, the Model Penal Code rejected the requirement, common in many jurisdictions at the time, that the victim’s reaction to threats be reasonable or that the actor have the present capacity to inflict the harm feared (id.). Notably, New York’s contemporaneous revision of its Penal Law (L 1965, ch 1030), which was heavily influenced by the Model Penal Code (see, People v Goetz, 68 NY2d 96, 109), resulted in a new definition of forcible compulsion which eliminated the prior requirement that the victim have "reasonable cause to believe” that the threatened harm would be inflicted (see, 1881 Penal Code § 278 [4] [rape]; 1909 Penal Law § 690 [3], as amended by L 1950, ch 525, § 15 [sodomy]; § 2010 [3] [rape]).

Thus, the proper question is not whether the defendant was capable of carrying out his threats, but rather whether the jury could reasonably infer that those threats placed the victim in fear of "immediate death or serious physical injury” (Penal Law § 130.00 former [8]). We conclude that the trial evidence was sufficient to justify such an inference.

Defendant contends that the evidence failed to establish that there was a threat of immediate harm. According to defendant, the evidence established, at most, that the threats were to have the victim assaulted by someone else at some indefinite time in the future. This characterization of the evidence, however, ignores several important aspects of the testimony.

Most significantly, defendant fails to take into account his threat that the victim "could get beat up anywhere, it could even be somebody on the tier”. With the cell doors unlocked, as they were throughout the day, the inmates within the juvenile tier had immediate access to the victim. The evidence also established that at least two of those inmates, including one considered by the victim to be a friend, viewed the incident without offering the victim any assistance. The victim was only 16 years old and a novice to the world of incarceration. The defendant was more than twice his age, powerfully built, and had made it clear to the victim that he held a position of power in the oppressive and unfamiliar environment the victim had recently entered. Indeed, defendant’s mere presence in the restricted juvenile tier was evidence of the influence at his disposal. That the defendant was not specific about when the threats might be carried out is of little consequence. The breadth of his threats encompassed the possibility that the harm could be delivered by anyone, including those with immediate access to the victim, and at anytime, including the present. The evidence, therefore, viewed as a whole, provided a sufficient basis for the jury’s conclusion that defendant’s threats placed the victim in fear of immediate death or serious physical injury.

III.

Thus, the Appellate Division erred in concluding that the evidence of forcible compulsion was legally insufficient. Because of that error, the court did not exercise its factual review powers and the case must be remitted for further proceedings. We have examined defendant’s remaining legal contentions in support of an affirmance and find them to be either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be reversed and the case remitted for further proceedings in accordance with this opinion.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . The definition of forcible compulsion has since been amended to eliminate the requirements of "earnest resistance” (L 1982, ch 560) and fear that a threatened physical injury be "serious” (L 1983, ch 449).

      . In light of this conclusion, we need not decide whether forcible compulsion can result from threats that put the victim in fear of retaliation —i.e., threats that the victim understands can only be accomplished in the future. The parties to this appeal appear to agree that the term "immediate” in Penal Law § 130.00 former (8) ("fear of immediate death or serious physical injury”) requires that the victim fear harm in the very near future.


author: Hancock, Jr., J.

text:
    In the Matter of New York Telephone Company, Respondent, v Public Service Commission of the State of New York, Appellant.
    Argued September 6, 1988;
    decided October 25, 1988

      POINTS OF COUNSEL

      Lawrence G. Malone and Robert A. Simpson for appellant.
    I. The Directory Publishing Agreement (DPA) is subject to the Commission’s article 5 jurisdiction because it assigns the utility’s provision of an essential public service to an unregulated affiliate, dedicates utility plant to purposes not consistent with the company’s tariff, transfers utility assets, works and systems to an affiliate, and calls for the utility to provide the affiliate with regulated services at unauthorized rates. (New York Tel. Co. v Jamestown Tel. Corp., 282 NY 365; Missouri Pac. R. R. v Aeby, 275 US 426; Baccelli v New England Brick Co., 138 App Div 656; McGlynn v Pennsylvania

      Steel Co., 144 App Div 343; Yaw v Whitmore, 46 App Div 422, 167 NY 605; Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485; Matter of Public Serv. Commn. v Rochester Tel. Corp., 55 NY3d 320; Ryan v New York Tel. Co., 62 NY2d 494; People ex rel. Public Serv. Commn. v New York Tel. Co., 262 App Div 440, 287 NY 803; Munn v Illinois, 94 US 113.) II. The DPA is also subject to the Commission’s jurisdiction under section 110 (3) of article 6. (Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485; Matter of General Tel. Co. v Lundy, 17 NY2d 373; People ex rel. McLaughlin v Board of Police Commrs., 174 NY 450; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 69 NY2d 365.) III. The Commission’s finding that the DPA was contrary to the public interest should be confirmed because it was supported by substantial evidence. (Matter of Solomon v Public Serv. Commn., 286 App Div 636; Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485.)

      John M. Clarke, Cornelia McDougald and Michael Flynn for respondent.
    I The court below properly held that section 110 (3) of the Public Service Law does not confer jurisdiction upon the Commission to disapprove the DPA. (Matter of General Tel. Co. v Lundy, 17 NY2d 373; Matter of New York Edison Co. v Maltbie, 244 App Div 685, 271 NY 103; Matter of International Ry. Co. v Public Serv. Commn., 264 App Div 506, 289 NY 830.) II. The court below properly held that other provisions of the Public Service Law do not confer jurisdiction upon the Commission to disapprove the DPA. (Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 69 NY2d 365; Spring Brook Water Co. v Village of Hudson Falls, 269 App Div 515; People ex rel. Iroquois Gas Corp. v Public Serv. Commn., 264 NY 17; Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485; Matter of Solomon v Public Serv. Commn., 286 App Div 636; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Securities Commn. v Chenery Corp., 332 US 194; Matter of Vogt v Tully, 53 NY2d 580; Matter of New York Tel. Co. v Public Serv. Commn., 62 NY2d 57.) III. The Commission’s decision to disapprove the DPA is arbitrary and lacks a substantial evidentiary basis.

      Paul Rodgers, Charles D. Gray and Lisa M. Zaina for National Association of Regulatory Utility Commissioners, amicus curiae.

    I. The Public Service Law gives the Commission the power to prevent the transfer of directory listings. (Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485.) II. The Public Service Law gives the Commission power to prevent the transfer of a source of utility revenue. (Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485; District of Columbia v Chesapeake & Potomac Tel. Co., 179 F2d 814.)

      Steven J. Glaser for Arizona Corporation Commission, amicus curiae.

   OPINION OF THE COURT

Hancock, Jr., J.

On January 1, 1984 petitioner, New York Telephone Company, entered into a contract pertaining to its telephone directory services with an affiliated company, NYNEX IRC. During the term of this contract, known as the Directory Publishing Agreement (DPA), the affiliate undertook the responsibility for operating the Telephone Company’s directory business and for providing alphabetical listing and Yellow Page advertising services to its customers. The principal question in this appeal by the Public Service Commission (hereinafter PSC or Commission) is whether it has authority under the Public Service Law to disapprove the DPA as not in the public interest. The Commission, in a proceeding brought to investigate the DPA, concluded that it had such authority under Public Service Law § 110 (3) under which it is authorized to disapprove "management, construction, engineering or similar” contracts made by a regulated utility with an affiliate; it also found such authority under certain provisions of article 5 of the Public Service Law including section 99 (2). Based on the evidence in a hearing held before an Administrative Law Judge, the Commission disapproved the DPA.

After the Telephone Company’s request for a rehearing was denied, it commenced the instant CPLR article 78 proceeding which Supreme Court transferred to the Appellate Division (CPLR 7804 [g]). That court held, on the authority of Matter of General Tel. Co. v Lundy (17 NY2d 373), that the Commission lacked jurisdiction to invalidate the DPA under Public Service Law § 110 (3) (132 AD2d 33). It also rejected the PSC’s claim of jurisdiction under other provisions in Public Service Law article 5. Accordingly, without reaching the issue of whether the DPA was in the public interest, the Appellate Division granted the Telephone Company’s petition and annulled the Commission’s determinations. We granted the PSC’s motion for leave to appeal and now reverse.

Because we hold that the PSC does have the requisite authority under Public Service Law § 110 (3), we need not discuss its claims of authority under other provisions of the statute. We conclude, moreover, that the Commission’s determination that the DPA is not in the public interest has a rational basis and is not arbitrary or capricious. Accordingly, the petition should be dismissed and the determinations of the PSC reinstated.

I

Prior to the effective date of the restructuring of the Bell System (see, United States v American Tel. & Tel. Co., 552 F Supp 131 [DC 1982], affd 460 US 1001 [1983]), the Telephone Company managed its own directory operations and provided alphabetical listing services to its subscribers. It also offered classified advertising in the Yellow Pages, which produced substantial profits considered by the Commission in setting telephone rates and ultimately returned to the subscribers in lower charges. The furnishing of White Page telephone listings is a service required as part of the Telephone Company’s responsibilities to its customers and, as such, is fully regulated by the Commission (see, e.g., 16 NYCRR 603.4). Although Yellow Page advertising is not a regulated service, the PSC nevertheless exerts limited authority over it "to see that all advertisers are treated equitably, and to insure that maximum revenues are derived from the sale of advertisements” (Matter of National Merchandising Corp. v Public Serv. Commn., 5 NY2d 485, 490; see, Matter of Solomon v Public Serv. Commn., 286 App Div 636, 639-640; Matter of Certain Subscribers v New York Tel. Co., [1937] 1 PSC 676, 20 PUR [NS] 223).

One aspect of the Bell System restructuring as finally approved by the Federal court in the AT&T antitrust case is of particular relevance here. This is the court’s rejection in its decision (United States v American Tel. & Tel. Co., supra) of the requirement being proffered by AT&T for inclusion in the proposed settlement — that the divested operating companies, such as petitioner, be barred from all activities relating to directory advertising in the Yellow Pages. The AT&T proposal was that the operating companies should auction off their directory businesses to the highest bidder, presumably AT&T (552 F Supp, at 193, n 257, supra). In holding that the proposal was not in the public interest Judge Greene — noting that no one disputed that the Yellow Pages provided a significant subsidy to local telephone rates — stressed the obvious point that the "loss of this large subsidy would have important consequences for the rates for local telephone service” (id., at 194).

Sometime before the impending Bell System divestiture date, NYNEX created an additional subsidiary, NYNEX IRC, and caused the Telephone Company to transfer to this new NYNEX subsidiary the Telephone Company staff (consisting of approximately 360 employees) which had been running its directory operations. The Telephone Company and NYNEX IRC — both NYNEX subsidiaries — then entered into the DPA, the contract in question.

The basic term of the DPA is for five years from January 1, 1984. There is a provision for automatic renewals for periods of one year unless either party, at least 12 months prior to an expiration date, gives notice of its intention not to renew. During the agreement, NYNEX IRC is obligated to "produce, publish and distribute” telephone directories for the Telephone Company’s subscribers; it is granted the exclusive right to contact the subscribers in the Telephone Company’s name "for the purposes of soliciting and obtaining Directory Advertising” and the right to use certain Telephone Company software systems necessary for the directory operation. The Telephone Company agrees to furnish the listing and other information required for NYNEX IRC to perform its function under the DPA; also, acting as agent for NYNEX IRC, it agrees to employ its own regular subscriber billing and collection system for the purpose of billing and collecting the advertising and special listing charges made by NYNEX IRC to its customers.

The DPA provides that NYNEX IRC will pay an annual directory publishing fee to the Telephone Company based upon its 1983 advertising profits adjusted each year for growth and inflation in addition to a sum to reimburse the Telephone Company for its billing and collection services. The profits in excess of this amount are retained by NYNEX IRC.

Based upon its analysis of the DPA and of the record, including particularly the testimony of certain Telephone Company witnesses, the PSC found that "the directory business belongs to New York Telephone but that NYNEX IRC will manage it for five years” (emphasis in original) ([1986] 26 PSC 1183, 1190, 1192); that in "structuring their obligations under the DPA, the companies have attempted to defeat [the Commission’s] jurisdiction by channeling the flow of 'charges’ from New York Telephone to its affiliate. That is, instead of having New York Telephone pay its affiliate for managing its Yellow Pages business, the contract, in form, calls for the NYNEX affiliate to pay New York Telephone a portion of 'its’ profits” (id..); and that "[a]s the record establishes, NYNEX IRC has contracted to manage New York Telephone’s directory business for five years. In return for the provision of this service, it is, in effect, charging New York Telephone the portion of system profits it is not returning” (id.).

In reaching the legal conclusion that it had jurisdiction to invalidate the DPA under Public Service Law § 110 (3) as a "management, construction, engineering or similar contract”, the Commission disagreed with the ALJ whose contrary view, like that of the Appellate Division (132 AD2d 33), was based essentially on his reading of our decision in Matter of General Tel. Co. v Lundy (17 NY2d 373, supra).

The Commission’s determination that the DPA was not in the public interest was also at odds with the recommendation of the ALJ. In its decision on the public interest question, the PSC adopted the position of its staff and rejected the contrary position of the Telephone Company on three principal propositions: (1) the base level earnings figure used in the DPA was understated; (2) the growth and inflation factors used did not reflect the historic annual increases in the directory business; and (3) the increases in competition due to deregulation would not affect earnings to the degree urged.

In its motion for a rehearing the Telephone Company contended, inter alia, that developments after the initial hearing had confirmed its earlier predictions concerning competition from former Bell System operating companies. The PSC found "no significant new developments that warranted] rehearing” in this or the company’s other contentions and, accordingly, denied the motion.

II

We turn to the legal question of the Commission’s authority to invalidate the DPA under Public Service Law §110 (3). The company contends first that the term "management contract” as employed in the statute refers only to the type of contract which confers the degree of control that utility holding companies, in the early part of this century, exerted over their subsidiary local operating companies — i.e., "the all-encompassing power to run the local operating company’s business lock-stock-and-barrel.” No language in section 110 (3) or elsewhere in the statute supports this narrow construction. Nor does anything in the legislative history.

It is true that section 110 (3) was not written to cover all contracts between a utility and an affiliate but only specific categories of contracts — i.e., "management, construction, engineering or similar” contracts. But section 110 (3) is not limited to any particular type of "management contract”, and the statute contains no definition or other language suggesting a more precise meaning of the term. Thus, there is no reason to read "management contract” as being limited to a contract which delegates total control and direction over an entire business. Nor, contrary to the Telephone Company’s contentions, does the natural and ordinary meaning of the word "manage” suggest that the control which the word connotes must be control over an entire concern or business and not over a part of it.

We find no evidence in the legislative history surrounding the original enactment of section 110 (3) (added L 1930, ch 760) supporting the company’s argument that the Legislature was concerned only with contracts between affiliates of the sort which relinquished "lock-stock-and-barrel” control or management over an entire operating company. Indeed, the very fact that the Legislature made the statute applicable to contracts where no such total control could exist — i.e., "construction, engineering or similar contract^]” — is persuasive evidence that it intended no such limitation. It is true, of course, that it was primarily abuses in the contractual arrangements between utility holding companies and their subsidiary operating companies which prompted the Legislature to take corrective measures in enacting section 110 (3) (L 1930, ch 760, § 1; see, e.g., Report of Commn on Revision of Public Service Commissions Law, 1930 NY Legis Doc No. 71 [Feb. 28, 1930]). The underlying purpose of the legislation was to prevent the utilities from insulating themselves from regulatory control through these contractual devices so that they could charge large fees "at the expense of the operating company and ultimately the consumer” (see, Report of William J. Donovan, Counsel to NY Law Rev Commn, 1930 NY Legis Doc No. 75, at 63 [Feb. 23, 1930]). Nothing in the legislative history suggests that this overriding legislative concern with preventing the utility owners from diverting profits to the owners at the expense of the ratepayers was confined to abuses in the "lock-stock-and-barrel” type of management contract (see, e.g., Report of Commn on Revision of Public Service Commissions Law, op. cit.; Report of William J. Donovan, Counsel to NY Law Rev Commn, op. cit.). Such a restricted reading of Public Service Law § 110 (3) would frustrate the very ameliorative purpose of the legislation and should be avoided (see, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 254; Ferres v City of New Rochelle, 68 NY2d 446, 451-452).

The question remains whether the DPA should be considered a "management contract” even under the broader construction of the term adopted by the PSC. We have no difficulty in concluding that it should be. Under the DPA, NY-NEX IRC is given total control over and responsibility for the management of the Telephone Company’s directory business. The company’s software, customer lists and other data, as well as approximately 360 of its employees are transferred for this purpose. NYNEX IRC assumes the obligation of meeting the Telephone Company’s responsibilities in providing directory service to its subscribers consistent with the company’s established policies and practices. Simply put, during the term of the DPA the systems remain the property of the Telephone Company but NYNEX IRC assumes the responsibility of running them and is paid for its services. That this payment takes the form of the Telephone Company’s relinquishment of all profits over a stipulated sum does not make it any less a payment by the Telephone Company to NYNEX IRC for managing the directory operations. Indeed, one of the Telephone Company’s witnesses frankly conceded this in his description of NYNEX IRC’s role under the DPA as "doing the work for us in return for payment”.

Contrary to the position of the Telephone Company, our decision in Matter of General Tel. Co. v Lundy (17 NY2d 373, supra) does not stand for the proposition that a contract pertaining to directory services may never constitute a management contract under Public Service Law § 110 (3). No reason is suggested for such a rule. Clearly, a management

contract can be entered into for any business or for some identifiable portion of it. What makes an arrangement a management contract is the degree and nature of the control and responsibility delegated. This is the issue we have examined here in determining whether the Telephone Company has vested NYNEX IRC with the authority to "manage” its directory publishing operations. This, however, was not the issue in Matter of General Tel. Co. v Lundy (supra). There, the question was whether the PSC could — in establishing utility rates in its ratemaking process — inquire into the reasonableness of certain contracts made with subsidiaries. We assumed that these contracts — various contracts for supplying specialized telephone equipment and standard telephone supplies and for furnishing directory services — did not fall within the categories of "management, construction, engineering or similar” contracts which the PSC could invalidate under section 110 (3). Notwithstanding this assumed lack of authority under section 110 (3), however, we held that the Commission could— for ratemaking purposes — examine the reasonableness of the expenditures called for under the contracts. The question of whether the particular contract pertaining to directory publishing services was a management contract under section 110 (3) was not in issue and never raised.

III

The remaining question involves the Commission’s determination that the DPA should be disapproved. Because the DPA is a contract covered by section 110 (3), the PSC was authorized to disapprove it if, after an investigation and a hearing, "it be found that [the contract] is not in the public interest” (Public Service Law § 110 [3]). Like the setting of utility rates, the question of whether a given contract is contrary to the public interest is a matter presenting "technical problems which have been left by the Legislature to the expertise of the PSC (see, Matter of New York State Council of Retail Merchants v Public Serv. Commn., 45 NY2d 661, 672)” (Matter of Abrams v Public Serv. Commn., 67 NY2d 205, 217-218); and it is only when the exercise of the PSC’s judgment in the matter "can be shown to be without any rational basis or any reasonable support in the record [that] its determination [may] be set aside” (id., at 218).

We find substantial evidence to support the Commission’s findings that the base level 1983 earnings figure was understated and that the growth and inflation factors used did not accurately reflect the historic trend in the directory business. The finding — that the earnings figure was understated because certain expenses were improperly allocated in the DPA —is supported by evidence introduced by the staff and by the Commission’s prior determination in a recent case (see, [1985] 25 PSC 3699, 3726-3729 [Case 28961, Opn No. 85-17]). The Commission’s finding that the DPA used unreasonably low growth and inflation factors was also supported by staif evidence which showed that the annual increases in the directory publishing fee permitted under the DPA were substantially under the corresponding actual directory earnings increases during the years 1979-1983.

Moreover, there is substantial evidence to support the Commission’s determination that increases in competition due to deregulation would not affect earnings to the extent urged by the Telephone Company. Although the Telephone Company argues that the Commission did not properly consider the probable effect from anticipated new competition, specifically from Southwestern Bell, the record reflects that a major portion of the hearing was devoted to this issue. The record supports the factual findings of the PSC that "competition existed in the past but that competitors were unable to make substantial inroads into New York Telephone’s revenue growth”; that the Telephone Company had failed "to demonstrate that circumstances have changed in a manner that would affect New York Telephone’s competitive edge vis-a-vis the large independent publishers that have competed with New York Telephone in the past”; and that in its presentation the company failed to consider adequately "the upside potential for continuing strong revenues and profit growth in spite of any effects of changes in the directory market” ([1986] 26 PSC, at 1230).

In sum, from a review of the record as a whole and the several grounds assigned by the Commission for its conclusion that the DPA was not in the public interest, we cannot say that the PSC’s determination was without any rational basis or any reasonable support in the record (see, Matter of Abrams v Public Serv. Commn., supra, at 217, 218). Accordingly, the judgment of the Appellate Division should be reversed, with costs, the petition dismissed and the determinations of the Public Service Commission reinstated.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Judgment reversed, etc.

      . Both New York Telephone Company and NYNEX Information Resources Company (NYNEX IRC) are wholly owned subsidiaries of NYNEX. The parent corporation, NYNEX, was created after the Bell System’s breakup and has other subsidiaries including New England Telephone.

      . Arthur Flaherty, Telephone Company division staff manager, for example, characterized the DPA as "almost like a license during that period, and that covers their doing the work for us in return for payment”; Joseph Gustafson, a Telephone Company division manager, stated that for the "term of the DPA, NYNEX IRC agrees to compile, publish and deliver white and yellow pages directories for the Company in a manner consistent with the Company’s established policies and practices”; and Donald Trawicki, a consultant hired by the Telephone Company, testified that there "is no provision for the return of the personnel [under the DPA], but the systems remain the property of New York Telephone Company”.

      . Although concluding that the PSC lacked jurisdiction over the DPA under Public Service Law § 110 (3) and not addressing the PSC’s contentions that it had jurisdiction under Public Service Law § 99 (2) and other article 5 sections, the AU nevertheless considered the case on the merits and in his recommendation found that the DPA was "a reasonable arrangement from the standpoint of NYT’s ratepayers” and that "even if one does not agree that NYT read the future correctly here, the record does not support a finding that the Company was imprudent. The record instead indicates that NYT studied the matter carefully before entering into the DPA arrangement, and that its decision to do so was at the very least based upon rational considerations”.

      . Public Service Law § 110 (3): "No management, construction, engineering or similar contract, hereafter made, with any affiliated interest, as hereinbefore defined, shall be effective unless it shall first have been filed with the commission, and no charge for any such management, construction, engineering or similar service, whether made pursuant to contract or otherwise, shall exceed the reasonable cost of performing such service. In any proceeding to determine the reasonable cost of such charge or service the burden of proof shall be on the company. If it be found that any such contract is not in the public interest, the commission, after investigation and a hearing, is hereby authorized to disapprove such contract.”

      . The definition of the word "manage” quoted in the company’s brief is as follows: "To control and direct, to administer, to take charge of. To conduct; to carry on the concerns of a business or establishment. Generally applied to affairs that are somewhat complicated and that involve skill and judgment” (Black’s Law Dictionary 865 [5th ed]).

      . The Telephone Company also argues that the Legislature’s failure to enact various proposed amendments to section 110 (3) which would have given the PSC expanded power to disapprove contracts is indicative of a legislative intent that the term "management contract” should be given the narrow construction it urges. Initially, we note that because of its "inherent ambiguity”, legislative inaction provides a dubious foundation from which positive inferences may be drawn (Clark v Cuomo, 66 NY2d 185, 190-191). Moreover, the amendments in question did not relate to the scope of the term "management contract”. Rather, they either sought to subject additional types of contracts — e.g., auditing, accounting or appraisal — or all contracts with subsidiaries to Commission approval. Thus, they shed no light on what is covered by the term "management contract”.


author: Bellacosa, J. Kaye, J.

text:
    In the Matter of Phil Caruso, as President of the Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Respondents, v Benjamin Ward, as Police Commissioner of the Police Department of the City of New York, et al., Appellants.
    Argued September 6, 1988;
    decided October 25, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Michael S. Adler and Francis F. Caputo of counsel), for appellants.
    The New York City Police Commissioner’s plan to administer drug tests approximately once each year to each member of the Department’s elite OCCB unit is not violative of the constitutional prohibition against unreasonable searches and seizures, in light of the compelling justification for such testing, the limited expectations of privacy enjoyed by OCCB members, and the plan’s reliance upon neutral selection criteria that allow no room for unbridled discretion in selection. (Matter of Dozier v New York City, 130 AD2d 128; People v John BB., 56 NY2d 482; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; Matter of Pell v Board of

      Educ., 34 NY2d 222; People ex rel. Masterson v French, 110 NY 494; McGowan v Mayor of City of N. Y., 53 NY2d 86; Flood v Kennedy, 12 NY2d 345; Matter of Morrisette v Dilworth, 59 NY2d 449; Matter of Alfieri v Murphy, 38 NY2d 976; Matter of Berenhaus v Ward, 70 NY2d 436.)

      Raymond E. Kerno for respondents.
    The striking down of Interim Order No. 36 by the courts below, as being unconstitutional, should be affirmed by this court under the circumstances where the search and seizure involved in obtaining urine samples from members of appellant Department’s elite Organized Crime Control Bureau is (a) a search and seizure under the Constitutions of the United States and of the State of New York, (b) an unwarranted and unreasonable search and seizure, in light of the absence of compelling justification for the administration of the test on a random basis, (c) unconstitutional because it unduly violates the expectations of privacy enjoyed by members of the Bureau, even taking into account their inherent diminished nature, and (d) unnecessary because of the demonstrated lack of a narcotics problem in the Bureau and the availability to appellants of the existing, less intrusive program of drug testing based on reasonable suspicion, which program has been demonstrated to be effective. (Capua v City of Plainfield, 643 F Supp 1507; Matter of Morrisette v Dilworth, 59 NY2d 449; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; National Treasury Employees Union v Von Raab, 816 F2d 170; New Jersey v T. L. O., 469 US 325; O’Connor v Ortega, 480 US 709; Feliciano v City of Cleveland, 661 F Supp 578; Katz v United States, 389 US 347; Penney v Kennedy, 648 F Supp 815; Burka v New York City Tr. Auth., 680 F Supp 590.)
   OPINION OF THE COURT

Bellacosa, J.

Members of an elite voluntary corps within the New York City Police Department, the Organized Crime Control Bureau (OCCB), sued the Police Commissioner upon his announcement of a periodic random urinalysis drug-testing program affecting them. The program would require random submission to urinalysis and, thus, differs from the existing unchallenged Department-wide drug-testing program.

Supreme Court and the Appellate Division granted an injunction and annulled the Commissioner’s Interim Order No. 36. We reverse, vacate the injunction and dismiss the officers’ challenge because the order, on its face, does not transgress State or Federal constitutional safeguards and because it is otherwise premature.

This lawsuit, commenced two days after Interim Order No. 36 was announced, produced injunctive and nullifying relief from the lower courts. Thus, the Commissioner has not officially promulgated implementing regulations specifying the particulars of the program. Two detailed affidavits of the Police Department Chief of Personnel, developed and submitted as part of the evolving litigation, outline an implementation scheme. We cannot rule on those particulars in this form and at this time as that is an insufficient basis on which to adjudicate the validity of the program as applied in individual cases (41 Kew Gardens Rd. Assocs. v Tyburski, 70 NY2d 325, 326; accord, McGowan v Burstein, 71 NY2d 729). However, we must decide the facial constitutional validity of the 1986 Interim Order No. 36, in view of the litigation course charted by the parties, as definitively adjudicated by the lower courts.

The New York City police force has approximately 27,000 officers. The directive at issue applies only to the specialized OCCB, which has approximately 1,100 volunteer officers in it. Up to 90% of these officers are enmeshed in hazardous narcotics-related operations. As part of their "ordinary” work, they infiltrate and associate with underworld operations and personnel, including large and small scale drug traffickers and criminals in a nether world.

Two years ago, the Department sought to expand its monitoring of the OCCB unit and the Commissioner issued Interim Order No. 36. Previously, OCCB members and those seeking assignment to the unit were subject only to the Department-wide drug-testing programs which included drug testing of all recruits upon application to the Department, a second testing during the five-month Police Academy training period, and a third testing at the conclusion of the 18-month probationary period. Additionally, since 1985, under Interim Order No. 13 all tenured police officers are subject to drug testing upon reasonable suspicion of drug usage.

Interim Order No. 36 has two components. First, all officers who apply for service in OCCB would be required to undergo drug testing as part of the application process and would be asked to sign a form acknowledging their understanding of the testing requirement. This is not legally challenged here. The second component provides for periodic random drug testing of every incumbent OCCB member. They would have to sign a form acknowledging their understanding that periodic drug testing is a condition of membership in the Bureau. Incumbents unwilling to accept the condition could transfer out of the Bureau without loss of rank or salary. Any officer in the Bureau who signs the form and later refuses to submit to the testing could be suspended and the refusal could be grounds for dismissal from the Department. Positive results of the urinalysis could be used for departmental disciplinary purposes but not for criminal prosecution.

The day after the Commissioner issued Interim Order No. 36, the petitioners’ union and its president commenced an administrative proceeding before the New York City Office of Collective Bargaining asserting that implementation of Interim Order No. 36 would constitute a work change violating their collective bargaining agreement. The following day petitioners also started this judicial proceeding seeking to block the implementation of Interim Order No. 36 pending the outcome of the administrative proceeding. Petitioners later amended the demand for judicial relief asking for annulment of Interim Order No. 36 as unconstitutional as well as for permanent enjoinment of its implementation. The parties stipulated not to pursue the administrative phase until this litigation was resolved. Notably, our decision today has no bearing on the merits of that collective bargaining proceeding.

The petitioners’ successful challenge in the lower courts rests on a claimed violation of State and Federal constitutional guarantees against unreasonable search and seizure (US Const 4th Amend; NY Const, art I, § 12), directed essentially at the randomness feature. Heavy reliance is understandably placed on the rule and rationale of Matter of Patchogue-Medford Congress of Teachers v Board of Educ. (70 NY2d 57) that plenary drug testing of teachers is constitutionally forbidden absent reasonable suspicion.

In Patchogue we considered the constitutionality of a public school’s declared policy requiring across-the-board urinalysis drug testing of all probationary teachers as a condition to qualifying for tenure. The school district informed probationary teachers that those who refused to provide the test sample would not be recommended for tenure. We held that the mandatory production of a urine specimen was a search and seizure under both the Federal and State Constitutions and that testing for all those teachers, without reasonable suspicion, was forbidden.

Our search and seizure analysis rests directly on the uniquely private nature of the act and the individual’s privacy right, which we accorded a high priority of protection. "Although [urine] is a waste product, it is not generally eliminated in public or in such a way that the public or government officials can gain access to it in order to 'read’ its contents” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, at 67, supra). Not only is it inherently private, the urine specimen and what it may reveal about the tested individual are also highly personal, e.g., pregnancy, diabetes, treatment for various medical problems including manic depression, epilepsy, heart disease and schizophrenia, etc. Indeed, the debate is over that urine samples extracted from governmental employees constitutes a search and seizure (see, 3 LaFave, Search & Seizure § 10.3 [e], at 41-42 [1988 Pocket Part]).

The Police Commissioner, recognizing the impact of Patchogue (70 NY2d 57, supra), concedes that the random drug testing announced in Interim Order No. 36 is a search and seizure. He contends, however, that unlike the probationary teachers subjected, across-the-board, to drug testing in Patchogue, the proposed testing of this high risk, highly sensitive, voluntary unit within the police force is reasonable and therefore constitutional.

The constitutionality of a search conducted by a public employer for "noninvestigatory, work-related purposes, as well as for. investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances” as to "both the inception and the scope of the [government] intrusion” (O’Connor v Ortega, 480 US 709, 724-727; see also, New Jersey v T. L. O., 469 US 325). In particular, a search by a public employer may be justified at its inception "when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose” (O’Connor v Ortega, 480 US, at 726-727, supra).

The Supreme Court has not decided whether individualized suspicion is an "essential element” of a valid work-related search (id., at —, 107 S Ct, at 1503), nor has it ruled specifically on the constitutionality of employee drug-testing programs conducted on a uniform or random basis (id., at 728-729, n; but see, National Treasury Employees Union v Von Raab, 816 F2d 170, 175-176 [5th Cir 1987], cert granted — US —, 108 S Ct 1072 [to be argued Nov. 2, 1988]; Railway Labor Executives’ Assn. v Burnley, 839 F2d 575 [9th Cir 1988], cert granted — US —, 108 S Ct 2033 [to be argued Nov. 2, 1988]). Outside the area of public employment, however, the court has. upheld the seizure of individuals in the absence of individualized suspicion only after first determining that the privacy interests at stake were minimal in nature (see, United States v Martinez-Fuerte, 428 US 543 [permitting brief questioning of vehicle occupants at border checkpoint]). The recognition that public employees might suffer a reduced expectation of privacy at the workplace has prompted one renowned authority, in discussing drug testing, to comment that: "[TJhere are a few forms of public employment in which the hazards of even of momentary lapse of attention or judgment are so substantial in terms of the physical danger to fellow workers or the general public, and in which the opportunities for preventive close supervision are so limited that only random or blanket testing will suffice” (3 LaFave, Search & Seizure § 10.3 [e], at 47-48 [Supp 1988]).

As noted earlier, in Patchogue-Medford we applied these operative principles to invalidate a mandatory drug-testing program for probationary teachers. In striking down the testing, Chief Judge Wachtler wrote for the court that under the State and Federal Constitutions “random searches conducted by the State without reasonable suspicion are closely scrutinized, and generally only permitted when the privacy interests implicated are minimal, the government’s interest is substantial, and safeguards are provided to insure that the individual’s reasonable expectation of privacy is not subjected to unregulated discretion” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, at 70, supra [emphasis added]; see also, New Jersey v T. L. O., 469 US 325, 342, n 8, supra). We emphasized that the severe privacy intrusion entailed in urine testing was greater than the intrusion occasioned by the brief detention of individuals at vehicle checkpoints for sobriety inspection which has been permitted in the absence of individualized suspicion (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, at 69, supra; see, People v Scott, 63 NY2d 518; Delaware v Prouse, 440 US 648). Urine testing “in the presence of a government official or agent,” we observed, "is at least as intrusive as a strip search” and involves a great "intrusion on individual privacy and dignity” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, at 67-68, 69, supra). The net result was that the school district’s legitimate State interests in seeing that its teachers were not drug impaired and, generally, in assuring a drug-free school environment did not overcome the very serious privacy intrusion and thus could not justify drug testing without reasonable suspicion.

The central question for us persists whether a privacy intrusion that we characterized as being "at least as intrusive as a strip search” may, on this record, be justified so as to permit random drug testing of OCCB members. Taken alone, the intrusion in this case would fail under Patchogue. But the analysis does not end so simply. There are factors here which take this case beyond Patchogue and render petitioners’ privacy interests insubstantial, thus permitting this urine-testing program to be authorized in the absence of reasonable suspicion.

We observed in Patchogue that all public employees have some diminished expectations of privacy in respect to inquiries by the State into their physical fitness to perform on the job (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, at 69, supra). The privacy expectations of police officers must be regarded as even further diminished by virtue of their membership in a paramilitary force, the integrity of which is a recognized and important State concern (see, Matter of Morrisette v Dilworth, 59 NY2d 449, 452; Matter of Purdy v Kreisberg, 47 NY2d 354, 361; Flood v Kennedy, 12 NY2d 345, 347). Indeed, this court has held that "[i]t is well established that it is within the State’s power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right” (Matter of Morrisette v Dilworth, 59 NY2d, at 452, supra). On the other hand, the special status of police officers does not alone reduce their expectation of privacy to "minimal” level in respect to random drug testing. Rather, their status, considered with the substantial privacy intrusions to which these particular OCCB members and applicants already have subjected themselves, reduces their privacy interest to a minimal or insubstantial level such that the admittedly crucial State interest justifies the random testing.

Before petitioners applied for assignment to the OCCB they had been tested for drug use by the Department at least three times. After the conclusion of the probationary period, petitioners continued, as do all officers, to be subject to the Department’s "reasonable suspicion” drug-testing standards. In contrast, no similar facts existed in Patchogue showing that the teachers had been subjected to mandatory drug testing in the past or that the school district had a long-standing drug-testing policy with which the teachers were familiar. The teachers there had neither consented to any drug testing nor made any concession as to the justification for such testing. Thus, there was no basis in that case for concluding that the teachers understood and accepted that drug testing was necessary to maintain the integrity of the teaching profession. Moreover, notwithstanding the widespread use of drugs in the schools by students, the teaching positions in Patchogue— unlike the OCCB positions involved here — did not carry with them an obvious drug risk. Clearly, there is a direct correlation between the substantive work of an OCCB member and drugs that must be considered in evaluating the magnitude of petitioners’ privacy interest in not being tested for drug use on the job.

Of crucial significance in this case is that OCCB members have a very diminished expectation of privacy due to their pursuit of service in the elite unit based on conditions known in advance, including many unchallenged components of Interim Order No. 36 itself. All members enter this service informed, fairly and reasonably, that they will be held to the strictest standards of probity and purity, over and above those already imposed on the police force at large. They enter with professionally sophisticated eyes wide open to the reality that they will operate in fishbowl-like circumstances undreamed of by Calpurnia herself. The officers agree to undergo microscopic examinations of their personal lives, their financial affairs and their professional judgment calls. Realistically, the proposed random drug testing in these narrow circumstances is just another layer of an already heightened, persistent and employee-expected scrutiny. Notably, these special officers also enjoy job benefits they sought out, including greater promotional opportunity and exciting challenging work.

The essential error of the lower courts in the instant case is that they gave an absolutist reading to Patchogue’s holding and insufficient consideration to the complementary exception analysis. This case is very different from Patchogue where the school district’s asserted interest in a drug-free teaching staff was limited to ensuring that "its teachers are fit and that drug abuse does not impair their ability to deal with the students” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, at 69, supra). Here, unlike that case, these elite officers have significantly lowered their own expectations of privacy to a bare minimum level. With that privacy distinction established, we take note of the Police Department’s assertion of a substantial State interest in ensuring that OCCB officers never take drugs. The Commissioner wants to be sure public perception of the OCCB unit and the entire Police Department would not be seriously impaired by these officers taking drugs on or off duty because, in either case, they would be violating the law they have been sworn to uphold and enforce. In a very real sense, these officers are effectively on duty 24 hours a day.

We believe that the Department has established a justifiable interest and responsibility in the periodic testing of special officers constituting its main line offense and defense in the war against drug trafficking. Daily exposure to drug users and traffickers and to offers of drugs, staggering sums of money and other human temptations presents enormous and self-evident risks. The expense alone of maintaining unlawful drug use magnifies the susceptibility of OCCB members to traitorous exchanges of classified information in return for drugs and illegal diversions of seized drugs (see, National Treasury Employees Union v Von Raab, 816 F2d 170, cert granted — US —, 108 S Ct 1072, supra). It is not melodramatic to note even the potentially fatal risks to fellow officers and others if a drug-abusing OCCB officer is called upon to use a weapon while under the influence of drugs in inherently high-risk assignments. The terror-filled world they are working in requires the sternest precautionary safeguards to weed out drug abusers from their own ranks.

Contrary to the dissent’s assertion of an "abrupt about-face”, we simply respond that we are (1) applying Patchogue’s full holding and its important privacy principles, (2) distinguishing Patchogue’s very different facts and employee group; and (3) using the narrow exception elements provided in that very case as applied to the unique facts of this case. We therefore conclude Interim Order No. 36, on its face at least, constitutes a reasonable search and seizure.

We cannot complete the discussion, however, without noting that the contours of this litigation prevent adjudication at this time of the validity of each of the implementing details to be employed by the Commissioner in this program. In that respect, indeed, we emphasize and caution that each officer retains important personal rights of privacy in the implementation of this facially valid program (see, National Treasury Employees Union v Von Raab, 816 F2d 170, cert granted — US —, 108 S Ct 1072, supra), and our decision in no way impinges on their 4th Amendment rights to be secure against unreasonable searches and seizures of their persons, homes, cars, lockers or other personal effects under traditional probable cause standards (see, e.g., O’Connor v Ortega, 480 US 709, 714-718, supra).

There is no merit to petitioners’ additional contention that the random drug testing is "unreasonable” because of the availability of the Department-wide alternative testing procedure-one based on reasonable suspicion. Statistics supplied by the Commissioner indicate that the existing testing program — based on results from that stricter reasonable suspicion threshold — has not deterred drug violations in the OCCB unit. Over a four-year period, narcotics-related disciplinary charges have been filed against 10 OCCB officers. These statistics and their direct relevancy, standing alone, would be meager and unpersuasive to support an assertion of pervasive illegal drug use and thus even a narrow targeted drug-testing program without an individualized reasonable suspicion predicate. But the statistics are informative among all the State interest factors examined in this case.

In sum, we cannot say it is unreasonable to have the additional and exceptional random drug-testing authorization for this special police unit as a deterrent as well as a device to discover unlawful drug users, particularly in view of the minimal expectation of privacy involved. The Police Commissioner’s plan for random drug testing of members of the elite OCCB unit falls within the narrow exception to Matter of Patchogue-Medford Congress of Teachers v Board of Educ. (70 NY2d 57, 70, supra) and is sufficient to withstand a facial constitutional attack.

Accordingly, the order of the Appellate Division should be reversed, with costs, and petition dismissed.

Kaye, J.

(dissenting). Today’s decision is an abrupt about-face from Matter of Patchogue-Medford Congress of Teachers v Board of Educ. (70 NY2d 57), where only last year this court concluded that the proposed random urine testing of probationary teachers constituted a search, that having to urinate under the observation of another person was at least as intrusive as a strip search, and that — despite the teachers’ diminished expectation of privacy, the public importance of unimpaired teachers, and the prevalence of drugs in schools— such searches were constitutionally prohibited in the absence of individualized reasonable suspicion. Now, the court upholds a proposed program of random urine testing under the observation of another person without any individualized suspicion, and without any reviewable procedural safeguards yet in place, because this is an elite voluntary corps of police officers with access to narcotics, because of the strong public interest in the purity and integrity of these employees, and because of their diminished privacy interest.

The criteria the court identifies are applicable to a wide array of public employees — even teachers, who are in an environment where drug use is particularly high. I disagree with the departure from Patchogue and with the new boundless test for permissible searches. The court should not approve this program on the present record, or in its present procedural posture. To my mind, the comprehensive trial court (133 Misc 2d 544) and Appellate Division (131 AD2d 214) opinions correctly state the law that governs this case, and I therefore respectfully dissent.

In that the proposed testing undisputedly constitutes a "search” — meaning government intrusion into petitioner’s legitimate expectation of privacy (Katz v United States, 389 US 347) — analysis begins with the governing constitutional principle that searches must not be unreasonable (NY Const, art I, § 12; US Const 4th Amend). The usual constitutional standard is not reasonable suspicion; it is that a search may be conducted only pursuant to a warrant approved by a neutral, detached Magistrate, based upon probable cause to believe that the party to be searched has violated the law.

There are a few "jealously and carefully drawn” exceptions to the warrant-preference rule (Jones v United States, 357 US 493, 499), most of them involving situations where probable cause exists — for instance, searches upon arrest, searches under exigent circumstances, and searches of objects in plain view. Within the category of warrantless searches there exists another group of cases in which a limited search may be conducted based upon mere reasonable suspicion that a violation has occurred (see, e.g., New Jersey v T. L. O., 469 US 325 [school search]; Delaware v Prouse, 440 US 648 [discretionary automobile stops]; United States v Brignoni-Ponce, 422 US 873 [roving-patrol automobile stops in border areas]; Terry v Ohio, 392 US 1 ["stop and frisk”]). These cases, however, represent exceptional circumstances in which special needs make the warrant and probable cause requirement impracticable. Even in these exceptional cases, individuals are not, without more, subjected to so great an intrusion on their individual privacy and dignity as providing urine samples (see, Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 69; People v Scott, 63 NY2d 518, 525).

The drug-testing program before us is thus three steps removed from the warrant requirement. It does not fall within any of the carefully drawn exceptions to the warrant-preference rule involving probable cause, and it does not fall within the exceptional circumstances involving individualized reasonable suspicion. Although the court has hypothesized that searches might at times be permitted even without individualized suspicion, we have made clear that such searches will be "closely scrutinized, and generally only permitted when the privacy interests implicated are minimal, the government’s interest is substantial, and safeguards are provided to insure that the individual’s reasonable expectation of privacy is not subjected to unregulated discretion.” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 70.)

Those prerequisites are not satisfied on this record.

Most significantly, the Commissioner has demonstrated no need in this case for surprise drug testing. The majority opinion incorrectly inverts and thus bypasses the proper order of analysis, reasoning from the premise that the OCCB officers have a reduced expectation of privacy to the conclusion that they therefore may be searched without cause. Unless at the outset the standard of reasonable suspicion is inadequate to allow identification of substance-abusing officers, the government lacks an interest that justifies departure from an individualized suspicion standard, and a random search is impermissible (see, 3 LaFave, Search & Seizure § 10.3 [e], at 47-48 [1988 Pocket Part]).

The Police Commissioner’s own statistics show 10 instances where narcotics-related disciplinary charges were filed against OCCB members over a four-year period. As the majority recognizes, this is "meager and unpersuasive to support an assertion of pervasive illegal drug use”. (Majority opn, at 442.) The Commissioner does not suggest that job performance declined or unusual incidents increased in a way consistent with pervasive undetected drug use. There is nothing to indicate that the prevalence of drug use in the general public is also a problem among OCCB officers. Indeed, the only evidence before us is decidedly to the contrary, supporting the conclusion that with the heightened scrutiny to which they are already subjected, "those finally accepted for membership in OCCB are among the best in the force and of a nature even less likely to use drugs than others in the Department.” (133 Misc 2d 544, 552.)

The important goal of deterrence — to the extent that it is suggested as the object of this program — is not, without evidence of a pervasive problem among the persons to be tested, justification for this search. Many types of illegal conduct could be deterred were the State permitted to search everyone "periodically in an all-inclusive dragnet * * * By restricting the government to reasonable searches, the State and Federal Constitutions recognize that there comes a point at which searches intended to serve the public interest, however effective, may themselves undermine the public’s interest in maintaining the privacy, dignity and security of its members.” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 70.)

The majority identifies as a strong government interest the integrity of the highly specialized OCCB unit itself. There are references to elite, special, highly sensitive employment. The implicit conclusion is that certain public employees, simply by virtue of their position and without any proof of wrongdoing, may be required to demonstrate their innocence upon demand. This not only provides little guidance as to who is subject to random tests, but also reduces the constitutional limitations on the government’s power to search to a hollow promise, and cannot be squared with Patchogue. If the integrity of a group of public employees is enough of an interest to justify random searches of ostensibly innocent persons it is difficult to imagine who should be exempt from such intrusion. The public clearly has an interest in the integrity of every employee who serves it; equally clearly, that alone does not give the State the power to conduct intrusive searches of their person.

The cases cited by the majority do not support its conclusion. Overwhelmingly courts have concluded — as we did in Patchogue — that a reasonable suspicion standard adequately protects the public interest.

Nor does Professor LaFave’s comment (majority opn, at 438) support the majority’s conclusion. After a lengthy review of cases overturning random testing programs, Professor LaFave wrote: "[I]t must be acknowledged that there may be a very few limited circumstances in which the general line of analysis pursued above will not produce the conclusion that the reasonable suspicion standard strikes the appropriate balance. Perhaps there are a few forms of public employment in which the hazards of even a momentary lapse of attention or judgment are so substantial in terms of the physical danger to fellow workers or the general public, and in which the opportunities for preventive close supervision are so limited that only random or blanket testing will suffice” (3 LaFave, Search & Seizure § 10.3 [e], at 47-48 [1988 Pocket Part]).

The skimpy record in this case does not support the proposition that OCCB members are an example of Professor La-Fave’s very limited theoretical exception. The factual submissions before us show only that the routine duties of OCCB members include enforcement of the narcotics laws, and that these officers have ready access to drugs. The rest — including graphic references to drug traffickers in a nether world, covert exchanges of classified information, and unique safety and other hazards of high-risk assignments — is solely lawyers’ rhetoric in briefs with no substantiation in the record. Perhaps a better factual record of what OCCB members do — if in actuality they do fit Professor LaFave’s theoretical exception —would have permitted the courts to fashion standards that could then serve as guidance in this important, developing area of law. We don’t have that record. There has been no showing that the heightened scrutiny to which OCCB members are already subjected does not, and would not — together with the reasonable suspicion standard — fully protect the public interest.

Thus, I would affirm the Appellate Division order simply because this record does not contain facts establishing the threshold requirement of government need for random searches.

While placing these officers "in fishbowl-like circumstances undreamed of by Calpurnia herself’ (majority opn, at 440), the majority nonetheless says that OCCB members retain important personal privacy rights, particularly the right to be secure against unreasonable searches and seizures of their persons, homes, cars, lockers and other personal effects (majority opn, at 442). I believe these retained privacy rights include the right to be free of the "very serious,” "severe privacy intrusion” (majority opn, at 438) now proposed.

The court places great emphasis on the "very diminished” or "minimal” privacy expectations of OCCB members centering on the voluntary nature of the assignment, the several drug tests to which they are routinely subjected and the scrutiny given their personal and financial affairs. While again these generalized assertions of heightened scrutiny are not supported more particularly in the factual record, the intensified examination these officers already receive — together with the documented lower incidence of drug abuse found among them, and the reasonable suspicion standard— point to the opposite conclusion from that reached by the court: that there is no justification for random testing of these individuals.

As described by the majority, the diminished or minimal privacy theory appears to proceed on a sort of implied consent —that voluntary pursuit of service in an elite corps where standardized drug testing is known in advance implies acceptance of further testing. Notably, in Patchogue we observed that the urine testing required of all probationary school teachers was "accepted and traditional” (70 NY2d, at 70, supra), that they had a "diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers, and it is not unreasonable to require teachers to submit to further testing when school authorities have reason to suspect that they are currently unfit for teaching duties.” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 69.) That same rationale should apply here. Knowledge of standardized drug testing cannot itself be deemed consent to additional testing, that in effect then becomes consent to more intrusive searches (see, Lo-Ji Sales v New York, 442 US 319, 329).

Finally, in Patchogue we made crystal-clear that any random search program would be permitted only where there were adequate safeguards provided to insure that the individual’s reasonable expectation of privacy was not subjected to unregulated discretion. Now the court for the first time approves a program for random searches without reasonable suspicion — thus establishing a precedent — yet it does so in a case where there are as yet no reviewable safeguards.

In Patchogue the court recognized that "there comes a point at which searches intended to serve the public interest, however effective, may themselves undermine thé public’s interest in maintaining the privacy, dignity and security of its members.” (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 70.) We made clear that random searches without reasonable suspicion would be closely scrutinized and permitted only upon adherence to specified requirements. Today we reaffirm those sentiments in words. In deed, however, the court gives its imprimatur to a program not yet even fully formulated, on factual submissions that do not satisfy the legal thresholds we only recently identified. On this record I would affirm the Appellate Division order.

Chief Judge Wachtler and Judges Simons, Alexander and Hancock, Jr., concur with Judge Bellacosa; Judge Kaye dissents and votes to affirm in a separate opinion in which Judge Titone concurs.

Order reversed, etc.

      . The majority points to distinctions between teachers and these police officers. Of course there are differences in the nature of their work. Yet in certain central respects the analogy is strong. Those who voluntarily choose to become teachers of the young should particularly be people of integrity, unimpaired by and uninvolved in drugs. The Police Commissioner’s statistics indicáte approximately 60% of students in grades 7-12 have had some involvement with illicit drugs; one of every two students reported some drug use.

      . Even as to police officers, courts overwhelmingly have required reasonable suspicion. (See, e.g., Penny v Kennedy, 846 F2d 1563 [6th Cir 1988] [mandatory urinalysis of police officers on department-wide basis without reasonable suspicion constitutes an unreasonable search]; Feliciano v City of Cleveland, 661 F Supp 578, 589 [ND Ohio 1987] ["reasonable individualized suspicion that a police officer is using illicit drugs must be required for urinalysis to be reasonable”]; American Fedn. of Govt. Employees v Weinberger, 651 F Supp 726 [SD Ga 1986] [Federal police officers cannot be tested without reasonable suspicion]; Bostic v McClendon, 650 F Supp 245 [ND Ga 1986] [mass testing of urine of police officers without reasonable suspicion violates Fourth Amendment]; Capua v City of Plainfield, 643 F Supp 1507 [D NJ 1986] [random urine testing of members of police department in absence of reasonable suspicion violates the Fourth Amendment]; Fraternal Order of Police v City of Newark, 216 NJ Super 461, 524 A2d 430 [1987] [city directive requesting all members of narcotics unit to submit to urine testing without probable cause or reasonable suspicion violates State and Federal Constitutions]; Turner v Fraternal Order of Police, 500 A2d 1005, 1009 [DC App 1985] ["There must be a reasonable objective basis to suspect that a urinalysis will produce evidence of an illegal drug use”]; City of Palm Bay v Bauman, 475 So 2d 1322 [Fla App 1985] [police officers and firefighters cannot be tested without reasonable suspicion]; see also, Security & Law Enforcement Employees v Carey, 737 F2d 187 [2d Cir 1984] [holding unconstitutional random strip and cavity searches of prison employees for contraband].)

      . The notion of "minimal” privacy expectations of OCCB members is curious. We all agree that the proposed test constitutes a "search,” which is by definition an intrusion into an individual’s legitimate expectation of privacy. Having concluded that there is an intrusion into the legitimate expectation of privacy of these officers, the test of reasonableness requires consideration of "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” (Bell v Wolfish, 441 US 520, 559.)

      . What the court refers to as "facial” validity (majority opn, at 435, 441, 442) is a novel — and I believe incorrect — application of the concept of "facial” and "as applied” constitutional challenges. The review here is termed "facial” only because the program has not yet been fully formulated — indeed added procedural safeguards have been suggested even in the briefs before this court. If anything, incompleteness of the proposed program would point to lack of ripeness or even to facial invalidity, but not to facial validity.