author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Marcellus Thomas, Appellant.
    Argued November 18, 1980;
    decided December 18, 1980

      POINTS OP COUNSEL

      David B. Perlmutter for appellant.
    I. The trial court committed reversible error in not allowing two witnesses to be called by the defense, or, in the alternative, allowing a statement neutralizing the effect of a failure to call such witnesses. (Washington v Texas, 388 US 14; People v Sapia, 41 NY2d 160; People v Sullivan, 43 AD2d 55; United States v La Couture, 495 F2d 1237; United States v Reese, 561 F2d 894; Bowles v United States, 439 F2d 536; United States v Martin, 526 F2d 485; United States v Licavoli, 604 F2d 613; People v Moore, 17 AD2d 57.) II. The failure to suppress the in-court identification by the robbery victim of defendant constituted reversible error. (People v Ballot, 20 NY2d 600; People v Rahming, 26 NY2d 411; People v Damon, 24 NY2d 256; People v Lebron, 46 AD2d 776; People v Simon, 49 AD2d 517; People v Robles, 46 AD2d 748; People v Brown, 20 NY2d 238; People v Rivera, 22 NY2d 453; People v Ganci, 27 NY2d 418; People v Harrington, 29 NY2d 498.) III. Numerous improper statements and questions by the prosecutor, often based upon matters not in evidence, prejudiced defendant and deprived him of a fair trial. (People v Fielding, 158 NY 542; People v Hamlin, 58 AD2d 631; People v Mims, 59 AD2d 769; People v Smoot, 59 AD2d 898; People v Milano, 59 AD2d 852; People v Wilson, 60 AD2d 920; People v Clark, 64 AD2d 669; People v Dickerson, 70 AD2d 623; People v Ashwal, 39 NY2d 105; People v Alicea, 37 NY2d 601.)

      John J. Santucci, District Attorney (John H. Larsen of counsel), for respondent.
    I. It was not an abuse of discretion to prohibit two prospective defense witnesses from taking the stand once they indicated that they would exercise their Fifth Amendment rights and refuse to testify. Nor was it an abuse of discretion not to have informed the jury of these events or to have issued them “neutralizing instructions” sua sponte. (People v McCartney, 38 NY2d 618; People v Carter, 37 NY2d 234; People v Gilliam, 37 NY2d 722; People v Sapia, 41 NY2d 160; United States v Martin, 526 F2d 485; Bowles v United States, 439 F2d 536, 401 US 995; People v Allen, 246 App Div 612; People v Sullivan, 43 AD2d 55; People v Pollock, 21 NY2d 206; People v Gissendanner, 48 NY2d 543.) II. The hearing Judge’s determination, affirmed by the court below, that the complainant had ample opportunity to observe appellant at the scene of the crime was supported by sufficient evidence on the record. (People v Whisby, 48 NY2d 834; People v Burrows, 46 NY2d 957; People v Peterson, 40 NY2d 1014.) III. The prosecutor’s conduct at trial and the court’s rulings respective thereto were proper in all respects. (People v Dawson, 50 NY2d 311; People v Marks, 6 NY2d 67; People v Al-Kanani, 33 NY2d 260; People v Calvano, 30 NY2d 199; People v Beyer, 25 NY2d 833; People v Santarelli, 49 NY2d 241; People v Brown, 26 NY2d 88; People v Maerling, 46 NY2d 289; People v Settles, 46 NY2d 154; People v Harding, 37 NY2d 130.)
   OPINION OF THE COURT

Gabrielli, J.

In this case, we are called upon to consider whether and under what circumstances a criminal defendant is entitled to have the jury informed that one or more of his witnesses was rendered unavailable to testify as a result of the witness’ own decision to invoke his constitutional privilege against self incrimination. Although we conclude that no such explanatory instruction was required under the circumstances of this case, we hasten to add that there may be instances in which a proper neutralizing instruction is necessary in order to correct any misimpression that may arise in the jurors’ minds from the witness’ absence at trial.

Defendant was charged with robbery in the first degree (Penal Law, § 160.15), criminal possession of a weapon in the second degree (Penal Law, § 265.03) and criminal possession of stolen property in the second degree (Penal Law, § 165.45). According to the People’s case, defendant had driven in a stolen car to a service station manned by one Joseph Lataillade at about 4:00 A.M. on the morning of April 5,1976. After receiving two dollars’ worth of gasoline, defendant allegedly pointed a gun at Lataillade through the car window and demanded money from the attendant. Lataillade promptly complied by reaching into his pocket and handing the driver of the automobile some 45 to 50 single dollar bills.

Approximately one half hour later, two police officers in a patrol car spotted a vehicle at a second service station which matched the radioed description of the vehicle involved in the Lataillade robbery. A high-speed chase ensued, and defendant was ultimately apprehended. In a subsequent search of defendant’s person, the police found a substantial sum in cash, including 49 single dollar bills.

Defendant’s version of events on the morning in question differed markedly from that advanced by the People. According to defendant, he had been in a bar with two other individuals until about 4:00 A.M. on the morning of the robbery and had borrowed the stolen car in which he was arrested from a friend only after he had returned to his home and had decided to go back to the bar. Defendant took the position at trial that it was Alan Whitlock, the person who had loaned him the car, who actually committed the Lataillade robbery.

After defendant’s two alibi witnesses had testified at the trial, defense counsel attempted to call Alan Whitlock to the witness stand, presumably for the purpose of eliciting from Whitlock his role in the robbery. Whitlock appeared, but, outside of the presence of the jury, immediately made it clear that he would refuse to testify on the ground that his testimony might tend to incriminate him. In response to this turn of events, the Trial Judge ruled that defense counsel would not be permitted to place Whitlock on the witness stand for the sole purpose of eliciting his refusal to testify. Although the Trial Judge indicated that he would allow Whitlock to testify if defense counsel demonstrated that he had questions which the witness would answer, defense counsel declined to take advantage of the court’s offer, stating only that “I intend to ask him things which I don’t think I should be compelled at this point to disclose to the Court”. Defense counsel once again stressed his conviction that he had an absolute ¡right to place Whitlock on the witness stand and, when the court refused to reconsider its ruling, demanded, as alternative relief, that the District Attorney stipulate for the benefit of the jury that Whitlock would have asserted his constitutional privilege had he been permitted to take the stand. This request too was denied, however, upon the ground that such a stipulation would place before the jury precisely the same irrelevant information that the jury would have received if Whit-lock had been placed on the witness stand.

The trial continued after this incident, and defense counsel called several other witnesses, including one Willis Payne. Payne testified that, during the period when he and Whitlock were in jail together, Whitlock had told him that he and not defendant had committed the crime with which defendant was charged. In spite of this revelation, defendant made no further request to have the jury informed of the reasons for Whitlock’s failure to appear. He did attempt, however, to put another individual, David Cook, on the witness stand, although, like Whitlock, Cook made it clear that he would refuse to testify on constitutional grounds. For the second time, , the trial court held that the witness would not be permitted to invoke the privilege against self incrimination in the presence of the jury unless there was a realistic possibility that the witness would give some testimony relevant to the issues in the case. The court also ruled that defendant was not entitled to have the jury informed of Cook’s decision to stand on his privilege.

At the conclusion of the trial, the jury found defendant guilty on all three counts in the indictment. The conviction was unanimously affirmed by the Appellate Division, which rejected defendant’s contention that he had been deprived of his right to a fair trial because of the trial court’s refusal to allow Whitlock and Cook to take the witness stand. The Appellate Division also concluded that the trial court’s refusal to instruct the jury concerning the reasons for the witnesses’ absence was not error under the circumstances of the case. We agree with the position taken by the Appellate Division, and, accordingly, we hold that the order of that court upholding the judgment of conviction should be affirmed.

At the outset, we reject defendant’s contention that he had an absolute right to place Whitlock and Cook on the witness stand even after the witnesses had informed the trial court that they had no intention of testifying. As we held in People v Sapia (41 NY2d 160, 163-164, cert den 434 US 823), the decision whether to permit defense counsel to call a particular witness solely “to put him to his claim of privilege against self incrimination in the presence of the jury” rests within the sound discretion of the trial court (accord United States v Licavoli, 604 F2d 613, 624; United States v Espinoza, 578 F2d 224, 228; United States v Reese, 561 F2d 894, 899; United States v Martin, 526 F2d 485, 487; United States v La Couture, 495 F2d 1237, cert den 419 US 1053; Bowles v United States, 439 F2d 536 [en banc], cert den 401 US 995). The rule is founded on the sound premise that a witness’ refusal to testify on constitutional grounds does not, in and of itself, have any real probative significance, although it may have a disprono^tionate impact upon the minds of the jurors and may tend to create the impression that the witness is guilty of a particular crime (see Bowles v United States, supra, at pp 541-542). In the context of the instant case, for example, there existed a very real danger that the jury would infer from Whitlock’s refusal to testify that defendant’s contention was correct and that it was Whitlock rather than defendant who had actually committed the Lataillade robbery. Yet, such an inference would clearly have been unwarranted, since Whitlock’s refusal to testify could have been based upon considerations wholly unrelated to the crime at issue in the instant trial. Indeed, inasmuch as the witness is, at least in the first instance, the sole arbiter of the applicability of the constitutional privilege to his own situation (Hoffman v United States, 341 US 479, 488; United States v Burr, 25 Fed Cas 38 [Marshall, J]; People v Arroyo, 46 NY2d 928, 930; People ex rel. Taylor v Forbes, 143 NY 219, 230-231; see Fisch, New York Evidence, § 697), a particular witness’ decision to refrain from testifying can never mean more than that the witness himself believes that something he might say would tend to implicate him with respect to some criminal wrongdoing of which only he is aware. It would thus be wholly improper in most situations to give the jurors an opportunity to speculate as to the nature of this wrongdoing by allowing a party to parade a witness before the jury for the sole purpose of eliciting in open court the witness’ refusal to testify.

For the same reasons, we conclude that there was no error in the trial court’s denial of defense counsel’s request for an instruction advising the jury that the witness David Cook had elected to invoke his constitutional privilege. Similarly, we cannot regard as improper the District Attorney’s refusal to stipulate in open court that Alan Whitlock would have invoked the privilege against self incrimination had he been allowed to take the witness stand. In making these requests, defendant was, in essence, attempting to accomplish indirectly that which we have already concluded could not be accomplished directly. Since the invitation to the jury to engage in unwarranted speculation exists whether the jury is informed of a witness’ refusal to testify by the Trial Judge or by the witness himself, we cannot say that it was error for the trial court in this case to reject defendant’s requests for an explanatory instruction or for a factual stipulation.

This is not to suggest that a defendant is never entitled to ask the trial court to intervene when a witness who might possess information valuable to the defense refuses to testify on constitutional grounds. Just as the trial court has a duty to intercede when there is a danger that a jury will be led to draw an unwarranted inference against the People, so too should the trial court take every reasonable step to ensure that the jury will not draw an improper inference against the defendant as a result of a potential witness’ refusal to speak. Thus, when a jury has been made aware during the course of a trial that a particular witness who has been barred from the witness stand due to his refusal to testify might possess information that would be helpful to the defendant’s case, the trial court should, upon request, give the jurors a neutral instruction advising them that the witness has become unavailable for reasons beyond the defendant’s control and that, consequently, no adverse inferences may be drawn from the witness’ failure to appear. Such a neutral instruction would have the salutary effect of preventing the jury from assuming improperly that the witness was not called because his testimony would not have supported the defendant’s position. At the same time, by omitting a specific reference to the witness’ decision to invoke his constitutional privilege against self incrimination, the trial court may avert any unwarranted and harmful speculation, by the jurors that the witness is guilty of a particular crime.

In this case, defendant might well have been entitled to such a neutral instruction regarding Alan Whitlock’s failure to testify had he made an appropriate request therefor, since the jury had been made aware of Whitlock’s significance to defendant’s case through the testimony given by defendant and by the witness Payne. Defendant, however, did not request such a neutral instruction, but instead chose to rely exclusively upon the contention that he had an absolute right to have the jury informed of Whitlock’s decision to invoke the privilege against self incrimination. Hence, he is now foreclosed from assigning as error the trial court’s failure to give a curative instruction of the type suggested by the foregoing analysis.

The other assertions concerning alleged improprieties in the conduct of his trial require only brief mention. First, defendant contends that the trial court erred in permitting the service station attendant, Lataillade, to make an in-court identification naming him as the perpetrator of the early morning robbery after the court had made a preliminary determination that a pretrial identification by Lataillade was “tainted” as a result of overly suggestive circumstances. Contrary to defendant’s present assertions, however, there was ample evidence to support the trial court’s conclusion that Lataillade’s observation of defendant during the commission of the crime furnished an adequate “independent basis” for an accurate in-court identification. Thus, we see no reason to disturb the trial court’s ruling on this point (People v Whisby, 48 NY2d 834).

Defendant also argues that this conviction should be reversed because the District Attorney acted improperly on several occasions during the course of the trial. Although we agree with defendant that there were two or three occasions when the District Attorney overstepped his proper bounds by alluding to uncharged crimes and by making brief reference to physical evidence not mentioned in the People’s bill of particulars, we cannot say on the basis of the present record that defendant was deprived of his basic constitutional right to a fair trial. As is apparent from the record, this was a strenuously contested trial in which both sides pressed their respective advantages at every possible opportunity. And, while we are unwilling to excuse entirely some of the prosecutor’s tactics in this case as mere instances of “overzealous advocacy”, we are also unable to conclude that the prosecutor’s infractions were of constitutional proportion.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . One Federal court has suggested an instruction which we find particularly well suited in cases such as this: “There has been testimony in this case about [a witness] named [John Doe]. As a result of a hearing held outside the presence of the jury, the court has determined that [Mr. Doe] is not available to be called as a witness by either side in this case. The jury may not draw any inference from the fact that [Mr. Doe] did not appear as a witness” (United States v Martin, 526 F2d 485, 486-487).

      . Defendant would not necessarily have been entitled to a similar instruction with respect to the witness Cook’s failure to testify. Since it does not appear that the jury was made aware of Cook’s significance to defendant’s case during the course of the trial, an instruction to the jury to disregard Cook’s absence might have served only to confuse the issues.

      . It should be noted that the “suggestive” circumstances which persuaded the court to suppress Lataillade’s pretrial identification were not the result of any misconduct on the part of the police. Instead, the decision to suppress was based upon a series of coincidences and unfortunate instances of poor timing which rendered the accuracy of Lataillade’s police station identification somewhat questionable.


source: Caselaw Access Project

author: Jones, J. Jasen, J. Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Ronald Onofre, Respondent. The People of the State of New York, Respondent, v Conde J. Peoples, III, and Philip S. Goss, Appellants. The People of the State of New York, Respondent, v Mary Sweat, Appellant.
    Argued October 8, 1980;
    decided December 18, 1980

      POINTS OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (Gail N. Uebelhoer and John A. Cirando of counsel), for appellant in the first above-entitled action.
    I. The court below erroneously extended the Griswold right to privacy to encompass sodomy. (Cooper v Morin, 49 NY2d 69; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; Griswold v Connecticut, 381 US 479; Lovisi v Slayton, 539 F2d 349, cert den sub nom. Lovisi v Zahradnick, Penitentiary Supt., 429 US 977; Raphael v Hogan, 305 F Supp 749; Matter of Dora P., 68 AD2d 719; People v Rice, 80 Misc 2d 511, 87 Misc 2d 257, 41 NY2d 1018; People v Johnson, 77 Misc 2d 889, 97 Misc 2d 905; Eisenstadt v Baird, 405 US 438; Carey v Population Servs., Int., 431 US 678.) II. The court below erroneously held that marriage violates equal protection. (Frontiero v Richardson, 411 US 677; San Antonio School Dist. v Rodriguez, 411 US 1; Village of Belle Terre v Boraas, 416 US 1; Griswold v Connecticut, 381 US 479; Frances B. v Mark B., 78 Misc 2d 112; Anonymous v Anonymous, 67 Misc 2d 982; Mirizio v Mirizio, 242 NY 74; People v Reilly, 85 Misc 2d 702;
      People v Johnson, 77 Misc 2d 889, 97 Misc 2d 905; Raphael v Hogan, 305 F Supp 749.) III. The court below erroneously held that proscriptions against sodomy were an improper exercise of State power. (People v Dozier, 72 AD2d 478; People v Rice, 41 NY2d 1018; People v Broadie, 37 NY2d 100; Paris Adult Theatre I v Slaton, 413 US 49; People v Portanova, 56 AD2d 265; People v Billi, 90 Misc 2d 568.) IV. The statute is constitutional. (Cooper v Morin, 49 NY2d 69; Matter of Dora P., 68 AD2d 719; Raphael v Hogan, 305 F Supp 749; People v Johnson, 77 Misc 2d 889, 97 Misc 2d 905; People v Dozier, 72 AD2d 478; People v Broadie, 37 NY2d 100; People v Portanova, 56 AD2d 265; People v Griswold, 213 NY 92; Matter of Trustees of State Univ. of N. Y. v Edelman, 76 Misc 2d 820.)

      Bonnie Strunk for respondent in the first above-entitled action.
    I. Section 130.38 of the New York Penal Law is an unconstitutional infringement upon respondent’s fundamental right to privacy. (Olmstead v United States, 277 US 438; Boyd v United States, 116 US 616; Union Pacific Ry. Co. v Botsford, 141 US 250; Meyer v Nebraska, 262 US 390; Allgeyer v Louisiana, 165 US 578; Pierce v Society of Sisters, 268 US 510; Prince v Massachusetts, 321 US 158; Skinner v Oklahoma, 316 US 535; Poe v Ullman, 367 US 497; Griswold v Connecticut, 381 US 479.) II. Respondent’s right to privacy is protected by the New York State Constitution. (Oregon v Hass, 420 US 714; Cooper v California, 386 US 58; Sibron v New York, 392 US 40; Cooper v Morin, 49 NY2d 69; People v Barber, 289 NY 378; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; Ives v South Buffalo Ry. Co., 201 NY 271; Matter of Jacobs, 98 NY 98; Bertholf v O’Reilly, 74 NY 509; People v Leyra, 302 NY 353.) III. Section 130.38 of the Penal Law violates respondent’s right to equal protection under the New York State and United States Constitutions. (Matter of Patricia A., 31 NY2d 83; New York State Soc. of Med. Masseurs v City of New York, 74 Misc 2d 573; Stanley v Georgia, 394 US 557; Eisenstadt v Baird, 405 US 438; Railway Express v New York, 336 US 106; People v Rice, 80 Misc 2d 511; Lovisi v Slayton, 363 F Supp 620; Matter of P., 92 Misc 2d 62, revd sub nom. Matter of Dora P., 68 AD2d 719; McGowan v Maryland, 366 US 420; United States Dept. of Agric. v Moreno, 413 US 528.) IV. Section 130.38 of the Penal Law violates the due process guarantee of the New York and United States Constitutions. (Matter of Toia v Regan, 54 AD2d 46, 40 NY2d 837; Barbier v Connolly, 113 US 27; Patterson v Carey, 41 NY2d 714; Eisenstadt v Baird, 405 US 438; Baker v Carr, 369 US 186.) V. The consensual sodomy statute does not serve any reasonable or legitimate State interest. (People v Dozier, 72 AD2d 478; People v Billi, 90 Misc 2d 568; People v Bunis, 9 NY2d 1; Stanley v Georgia, 394 US 557; Goldberg v Kelly, 397 US 254; Hannah v Larche, 363 US 420.) VI. Section 130.38 violates the establishment clause of the First Amendment and section 3 of article I of the New York State Constitution. (Engel v Vitale, 370 US 421; Committee for Public Educ. v Nyquist, 413 US 756; Epperson v Arkansas, 393 US 97; Everson v Board of Educ., 330 US 1; Abington School Dist. v Schempp, 374 US 203; McGowan v Maryland, 366 US 420; McCollum v Board of Educ., 333 US 203; Serbian Orthodox Diocese v Milivojevich, 426 US 696.) VII. Respondent’s challenge to the constitutionality of New York’s consensual sodomy law raises substantial Federal questions that were neither resolved nor precluded by the Supreme Court’s summary affirmance of Doe v Commonwealth’s Attorney. (Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; Hicks v Miranda, 422 US 332; Gibson v Berryhill, 411 US 564; Edelman v Jordan, 415 US 651; Fusari v Steinberg, 419 US 379; Dillenburg v Kramer, 469 F2d 1222; Jordan v Gilligan, 500 F2d 701, 421 US 991; Fisher v Secretary of U. S. Dept. of Health, Educ. & Welfare, 522 F2d 493; Ashwander v Valley Auth., 297 US 288; Abbott Labs. v Gardner, 387 US 136.)

      Bruce V. Bordelon, Shepherd I. Raimi and Jo-Ann H. Whitehorn for The Special Committee on Sex and Law of the Association of the Bar of the City of New York, amicus curiae, in the first above-entitled action.
    The court below correctly struck down New York’s consensual sodomy statute as violative of all citizens’ — heterosexual as well as homosexual — rights of privacy. (Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; Griswold v Connecticut, 381 US 479; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Carey v Population Servs. Int., 431 US 678; Stanley v Georgia, 397 US 557; Terry v Ohio, 392 US 1; Loving v Virginia, 388 US 1; Matter of Dora P., 68 AD2d 719; Roberson v Rochester Folding Box Co., 171 NY 538.)

      Barbara Ellen Handschu for National Committee for Sexual Civil Liberties, amicus curiae in the first above-entitled action.
    I. The right of privacy is involved herein both under the Federal and the State Constitutions. (Central Sav. Bank in City of N. Y. v City of New York, 280 NY 9; Cooper v Morin, 49 NY2d 69; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; Dorsey v Stuyvesant Town Corp., 299 NY 512; Fuentes v Shevin, 407 US 67; Fusari v Steinberg, 419 US 379; Griswold v Connecticut, 381 US 479; Mandel v Bradley, 432 US 173; Matter of P., 92 Misc 2d 62, revd sub nom. Matter of Dora P., 68 AD2d 719.) II. Section 130.38 of the Penal Law is an improper invasion of the right of privacy. (Jacobellis v Ohio, 378 US 184; Paris Adult Theater I v Slaton, 413 US 49; People v Onofre, 72 AD2d 268; People v Rice, 41 NY2d 1018; Roe v Wade, 410 US 113; Stanley v Georgia, 394 US 557.)

      Thomas B. Stoddard and Steven R. Shapiro for New York Civil Liberties Union, amicus curiae in the first above-entitled action.
    I. This court should explicitly recognize a right to privacy under the Constitution of the State of New York. (Olmstead v United States, 277 US 438; Griswold v Connecticut, 381 US 479; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Carey v Population Servs. Int., 431 US 678; Spahn v Julian Messner, Inc., 43 Misc 2d 219, 23 AD2d 216, 18 NY2d 324; Time, Inc. v Hill, 385 US 374; Matter of A & M, 61 AD2d 426; Matter of P., 92 Misc 2d 62, revd sub nom. Matter of Dora P., 68 AD2d 719; Matter of Fraser v Brown, 203 NY 136.) II. Private sexual activity between consenting adults should be protected by any right of privacy recognized under the State Constitution and, on that basis, section 130.38 of the Penal Law must be struck down. (People v Rice, 41 NY2d 1018; Katz v United States, 389 US 347; Roe v Wade, 410 US 113.) III. The right to privacy guaranteed by the United States Constitution protects private sexual activity between consenting adults. (Griswold v Connecticut, 381 US 479; Eisenstadt v Baird, 405 US 438; Skinner v Oklahoma, 316 US 535; Whalen v Roe, 429 US 589; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; Carey v Population Servs. Int., 431 US 678; Stanley v Georgia, 394 US 557.)

      Margot Karle and Rosalyn H. Richter for Lambda Legal Defense & Education Fund, Inc., amicus curiae in the first above-entitled action.
    I. The court below correctly held section 130.38 of the Penal Law is unconstitutional as violative of the right to privacy. (Carey v Population Servs. Int., 431 US 678; Cooper v Morin, 49 NY2d 69; Doe v Bolton, 410 US 179; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; Eisenstadt v Baird, 405 US 438; Griswold v Connecticut, 381 US 479; Lovisi v Slayton, 539 F2d 349; Planned Parenthood of Mo. v Danforth, 428 US 52; Roe v Wade, 410 US 113; Stanley v Georgia, 394 US 557.) II. The court below correctly held section 130.38 as violative of the equal protection clause. (Acanfora v Board of Educ., 359 F Supp 843, 491 F2d 498, 419 US 836; Eisenstadt v Baird, 405 US 438; Griswold v Connecticut, 381 US 479; Matter of P., 92 Misc 2d 62, revd sub nom. Matter of Dora P., 68 AD2d 719; Korematsu v United States, 323 US 214; Maher v Roe, 432 US 464; Mathews v Lucas, 427 US 495; Memorial Hosp. v Maricopa County, 415 US 250; San Antonio School Dist. v Rodriguez, 411 US 1.) III. Section 130.38 should be held unconstitutional under the provisions of the New York Constitution irrespective of the interpretation under the Federal Constitution. (Cooper v Morin, 49 NY2d 69; People v Fiedler, 31 NY2d 176; People v Isaacson, 44 NY2d 511; Sharrock v Del Buick-Cadillac, 45 NY2d 152; Wilkinson v Skinner, 34 NY2d 53.)

      William H. Gardner and Dianne Bennett for appellants in the second and third above-entitled actions.
    I. The New York consensual sodomy statute is unconstitutional as an impermissible invasion of privacy. (People v Onofre, 72 AD2d 268; Griswold v Connecticut, 381 US 479; Stanley v Georgia, 394 US 557; Eisenstadt v Baird, 405 US 438; Roe

      v Wade, 410 US 113; Boyd v United States, 116 US 616; Union Pacific Ry. Co. v Botsford, 141 US 250; Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Prince v Massachusetts, 321 US 158; Skinner v Oklahoma, 316 US 535.) II. Appellants have standing to raise the right of privacy in support of their effort to have their convictions set aside. (People v Rice, 41 NY2d 1018; Gris-wold v Connecticut, 381 US 479; Orr v Orr, 440 US 268.) III. The New York consenual sodomy statute is unconstitutional as a violation of the rights to the equal protection of the laws of those who are subject to it, as a result of the distinction made in the statute between married and unmarried persons. (Griswold v Connecticut, 381 US 479.) IV. Regardless of the result under the United States Constitution, this court should hold the statute unconstitutional under applicable provisions of the New York Constitution. (Cooper v Morin, 49 NY2d 69; Cohen v Hurley, 366 US 117; Oregon v Hass, 420 US 714; Sharrock v Del Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511.) V. The court should strike down the consensual sodomy statute (Penal Law, § 130.38) in its entirety. (Matter of Lyons v Goldstein, 290 NY 19; People v Finkelstein, 9 NY2d 342; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379; People v Epton, 19 NY2d 496; People v Kaiser, 21 NY2d 86; Spahn v Julian Messner, Inc., 21 NY2d 124; Matter of Seitz v Drogheo, 21 NY2d 181; People v Bailey, 21 NY2d 588.) VI. Appellants have established that their prosecution'is the result of discriminatory enforcement, resulting in a violation of their constitutional right to equal protection of the laws. (Yick Wo v Hopkins, 118 US 356; People v Utica Daw’s Drug Co., 16 AD2d 12; People v Friedman, 302 NY 75; People v Goodman, 31 NY2d 262; Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686; Matter of Di Maggio v Brown, 19 NY2d 283; Snowden v Hughes, 321 US 1; Gomillion v Lightfoot, 364 US 339; Oyler v Boles, 368 US 448; People v Walker, 14 NY2d 901.)

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent in the second and third above-entitled actions.
    I. The constitutionally recognized right to privacy does not protect acts of consensual sodomy committed by individuals in automobiles parked on public streets. (Griswold v Connecticut, 381 US 479; Poe v Ullman, 367 US 497; Stanley v Georgia, 394 US 557; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Skinner v Oklahoma, 316 US 535; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, 425 US 901; People v Rice, 41 NY2d 1018.) II. Appellants lack standing to assert a right to privacy in the present cases. III. Section 130.38 of the Penal Law is not violative of the right to equal protection of the law. (Griswold v Connecticut, 381 US 479; People v Rice, 87 Misc 2d 257; Raphael v Hogan, 305 F Supp 749; Near v Minnesota, 283 US 697; Matter of Levy, 38 NY2d 653.) IV. Section 130.38 of the Penal Law should not be held to be unconstitutional under this State’s Constitution. (Cooper v Morin, 49 NY2d 69.) V. Even if section 130.38 of the Penal Law is found unconstitutional with respect to private conduct, the statute should be held to be valid with respect to sodomous acts performed in public areas. VI. The trial court properly denied appellant’s claim of discriminatory enforcement of the statute in the absence of any evidence to support such a claim. (Yick Wo v Hopkins, 118 US 356; People v Utica Daw’s Drug Co., 16 AD2d 12; People v Goodman, 31 NY2d 262.)
   OPINION OF THE COURT

Jones, J.

These appeals, argued together, present a common question — viz., whether the provision of our State’s Penal Law that makes consensual sodomy a crime is violative of rights protected by the United States Constitution. We hold that it is.

Defendant Onofre was convicted in County Court of Onondaga County of violating section 130.38 of the Penal Law (consensual sodomy) after his admission to having committed acts of deviate sexual intercourse with a 17-year-old male at defendant’s home. The factual admission followed the court’s denial of defendant’s motion to dismiss the indictment on the ground that the statute was an invasion of his constitutionally protected right of privacy and that it denied him equal protection of the laws.

Defendants Peoples and Goss were convicted in Buffalo City Court of violating the consensual sodomy statute after a jury trial at which evidence was adduced that they had engaged in an act of oral sodomy in an automobile parked on a street in the City of Buffalo in the early morning hours. Defendant Sweat was convicted of the same crime after a jury trial in the same court on proof that she had committed a similar act with a male in a truck parked on a street in a residential area of the city about 1:30 a.m. In the cases in Buffalo City Court motions by defendants for dismissals of the informations on the ground that section 130.38 of the Penal Law is unconstitutional because it deprives them of equal protection of the law and denies their right of privacy had been denied.

On appeal by defendants from the judgments of conviction the Appellate Division, Fourth Department, reversed in the case of Onofre and dismissed the indictment, concluding that section 130.38 of the Penal Law was unconstitutional and the County Court of Erie County affirmed the convictions of Peoples, Goss and Sweat, rejecting the claims of unconstitutionality. The order of the Appellate Division should be affirmed; those of County Court should be reversed and the informations dismissed.

The statutes under which these defendants were charged and convicted provide as follows:

“§ 130.38 Consensual sodomy.
“A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.
“§ 130.00 Sex offenses; definitions of terms.
“The following definitions are applicable to this article:
* * * *
“2. Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.”

Because the statutes are broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults and because it permits the same conduct between persons married to each other without sanction, we agree with defendants’ contentions that it violates both their right of privacy and the right to equal protection of the laws guaranteed them by the United States Constitution.

As to the right of privacy. At the outset it should be noted that the right addressed in the present context is not, as a literal reading of the phrase might suggest, the right to maintain secrecy with respect to one’s affairs or personal behavior; rather, it is a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by governmental restraint — what we referred to in People v Rice (41 NY2d 1018, 1019) as “freedom of conduct”. (See Whalen v Roe, 429 US 589, 598-600.) The right, which has been called “the most comprehensive of rights and the right most valued by civilized men” (Olmstead v United States, 277 US 438, 478 [Brandeis, J., dissenting] ), “has been viewed as emanating from the first amendment’s guarantee of freedom of association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); and of speech, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); the fourth amendment, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); the equal protection clause of the fourteenth amendment, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); the ninth amendment, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring); the penumbras of the Bill of Rights, id.; and the concept of liberty guaranteed by the due process clause of the fourteenth amendment, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)” (Lovisi v Slayton, 363 F Supp 620, 624, affd 539 F2d 349, cert den 429 US 977, supra).

As recently as 1976 the Supreme Court took pains in Carey v Population Servs. Int. (431 US 678, 684-685) to observe that “the outer limits” of the decision-making aspect of the right of privacy “have not been marked by the Court”, noting however that “among the decisions that an individual may make without unjustified government interference” are personal decisions relating to marriage (Loving v Virginia, 388 US 1, 12, supra), procreation (Skinner v Oklahoma, 316 US 535, 541-542), contraception (Eisenstadt v Baird, 405 US 438, 453-454), family relationships (Prince v Massachusetts, 321 US 158, 166), child rearing and education (Pierce v Society of Sisters, 268 US 510, 535; Meyer v Nebraska, 262 US 390, 399), and abortion (Roe v Wade, 410 US 113, 154, supra).

The People are in no disagreement that a fundamental right of personal decision exists; the divergence of the parties focuses on what subjects fall within its protection, the People contending that it extends to only two aspects of sexual behavior — marital intimacy (by virtue of the Supreme Court’s decision in Griswold v Connecticut [381 US 479, supra]) and procreative choice (by reason of Eisenstadt v Baird [405 US 438, supra] and Roe v Wade [410 US 113, swpra\). Such a stance fails however adequately to take into account the decision in Stanley v Georgia (394 US 557, supra) and the explication of the right of privacy contained in the court’s opinion in Eisenstadt. In Stanley the court found violative of the individual’s right to be free from governmental interference in making important, protected decisions a statute which made criminal the possession of obscene matter within the privacy of the defendant’s home. Although the material itself was entitled to no protection against government proscription (Roth v United States, 354 US 476) the defendant’s choice to seek sexual gratification by viewing it and the effectuation of that choice within the bastion of his home, removed from the public eye, was held, to be blanketed by the constitutional right of privacy. That the right enunciated in Griswold v Connecticut (381 US 479, supra) to make decisions with respect to the consequence of sexual encounters and, necessarily, to have such encounters, was not limited to married couples was made clear by the language of the court in Eisenstadt v Baird (405 US 438, 453, supra): “It is true that in Gris-wold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. See Stanley v. Georgia, 394 U. S. 557 (1969).” In a footnote appended to the Stanley citation the court set out the following quotation from that decision (p 453, n 10):

“ ‘[A]Iso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.
“ * “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).'”

In light of these decisions, protecting under the cloak of the right of privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears for excluding from the same protection decisions — such as those made by defendants before us — to seek sexual gratification from what at least once was commonly regarded as “deviant” conduct, so long as the decisions are voluntarily made by adults in a noncommercial, private setting. Nor is any such basis supplied by the claims advanced by the prosecution— that a prohibition against consensual sodomy will prevent physical harm which might otherwise befall the participants, will uphold public morality and will protect the institution of marriage. Commendable though these objectives clearly are, there is nothing on which to base a conclusion that they are achieved by section 130.38 of the Penal Law. No showing has been made, even in references tendered in the briefs, that physical injury is a common or even occasional consequence of the prohibited conduct, and there has been no demonstration either that this is a danger presently addressed by the statute or was one apprehended at the time the statutory section was enacted contemporaneously with the adoption of the new Penal Law in 1965. Indeed, the proposed comprehensive penal statute submitted to the Legislature by the Temporary Commission on Revision of the Penal Law and Criminal Code dropped all proscription against private acts of consensual sodomy. That the enactment of section 130.38 of the Penal Law was prompted by something other than fear for the physical safety of participants in consensual sodomy is suggested by the statement contained in the memorandum prepared by the chairman of the Temporary Commission: “It would appear that the Legislature’s decision to restore the consensual sodomy offense was, as with adultery, based largely upon the premises that deletion thereof might ostensibly be construed as legislative approval of deviate conduct” (NY Legis Ann, 1965, pp 51-52).

Any purported justification for the consensual sodomy statute in terms of upholding public morality is belied by the position reflected in the Eisenstadt decision in which the court carefully distinguished between public dissemination of what might have been considered inimical to public morality and individual recourse to the same material out of the public arena and in the sanctum of the private home. There is a distinction between public and private morality and the private morality of an individual is not synonymous with nor necessarily will have effect on what is known as public morality (see State v Saunders, 75 NJ 200, 218-220). So here, the People have failed to demonstrate how government interference with the practice of personal choice in matters of intimate sexual behavior out of view of the public and with no commercial component will serve to advance the cause of public morality or do anything other than restrict individual conduct and impose a concept of private morality chosen by the State.

Finally, the records and the written and oral arguments of the District Attorneys as well are devoid of any support for the statement that a prohibition against consensual sodomy will promote or protect the institution of marriage, venerable and worthy as is that estate. Certainly there is no suggestion that the one is a substitute or alternative for the other nor is any empirical data submitted which demonstrates that marriage is nothing more than a refuge for persons deprived by legislative fiat of the option of consensual sodomy outside the marital bond.

In sum, there has been no showing of any threat, either to participants or the public in general, in consequence of the voluntary engagement by adults in private, discreet, sodomous conduct. Absent is the factor of commercialization with the attendant evils commonly attached to the retailing of sexual pleasures; absent the elements of force or of involvement of minors which might constitute compulsion of unwilling participants or of those too young to make an informed choice, and absent too intrusion on the sensibilities of members of the public, many of whom would be offended by being exposed to the intimacies of others. Personal feelings of distaste for the conduct sought to be proscribed by section 130.38 of the Penal Law and even disapproval by a majority of the populace, if that disapproval were to be assumed, may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision protected under the right of privacy drawn from the United States Constitution — areas, the number and definition of which have steadily grown but, as the Supreme Court has observed, the outer limits of which it has not yet marked.

The assertion in the dissent that validation of the consensual sodomy statute is mandated by our recent decision in People v Shepard (50 NY2d 640) proceeds from a misconception of our holding in Shepard. In that case we upheld the constitutionality of the statutory proscription against the possession of marihuana as applied to possession by an individual in the privacy of his home, noting the existence of a legitimate controversy with respect to whether marihuana is a dangerous substance. The concurring opinion assembled the impressive evidence of the harmfulness which attends the use of marihuana. On such a record we sustained the right of the Legislature to reach the substantive conclusion that the use of marihuana was indeed harmful and accordingly to impose a criminal proscription based on that predicate. There is in the present case no basis for a counterpart to the statement in Shepard that “the Legislature, following extensive studies and hearings, has specifically found the drug to be sufficiently harmful to warrant punishing its possession in an effort to deter its use” (p 646). By critical contrast neither the People nor the dissent has cited any authority or evidence for the proposition that the practice of consensual sodomy in private is harmful either to the participants or to society in general; indeed, the dissent’s appeal is only to the historical, conventional charactertization which attached to the practice of sodomy. It surely does not follow that, because it is constitutionally permissible to enter the privacy of an individual’s home to regulate conduct justifiably found to be harmful to him, the Legislature may also intrude on such privacy to regulate individual conduct where no basis has been shown for concluding that the conduct is harmful.

As to the denial of defendants’ right to equal protection. Section 130.38 of the Penal Law on its face discriminates between married and unmarried persons, making criminal when done by the latter what is innocent when done by the former. With that distinction drawn, we look to see whether there is, as a minimum, “some ground of difference that rationally explains the different treatment accorded married and unmarried persons” under the statute (Eisen stadt v Baird, 405 US 438, 447, supra). In our view, none has been demonstrated or identified by the People in any of the cases before us. In fact, the only justifications suggested are a societal interest in protecting and nurturing the institution of marriage and what are termed “rights accorded married persons”. As has been indicated, however, no showing has been made as to how, or even that, the statute banning consensual sodomy between persons not married to each other preserves or fosters marriage. Nor is there any suggestion how consensual sodomy relates to rights accorded married persons; certainly it is not evident how it adversely affects any such rights. Thus, even if it be assumed that the objectives tendered by the prosecution are legitimate matters of public concern, no relationship— much less rational relationship — between those objectives and the proscription of section 130.38 of the Penal Law is manifested. The statute therefore must fall as violative of the right to equal protection enjoyed by persons not married to each other.

Little more need be said to dispose of the contention made by the District Attorneys that the statute is a valid exercise of the police power vested in the State, which power, it is asserted, is authorized for the prevention of harm or for the preservation of public morality. No substantial prospect of harm from consensual sodomy nor any threat to public — as opposed to private — morality has been shown.

Finally, we do not plow new ground in the result we reach today. Most recently, the Supreme Court of Pennsylvania, for some of the same reasons that underlie our decision, has reached a similar conclusion even in a case in which the defendants were charged with commission of deviant acts of sexual conduct with members of the audience at performances in a public theatre for which an admission fee had been charged (Commonwealth v Bonadio, 490 Pa 91). Also consistent with the result we reach are the decisions by the Iowa Supreme Court in State v Pilcher (242 NW2d 348 [Iowa]) and by the New Jersey Superior Court in State v Ciuffini (164 NJ Super 145), relying on the earlier case of State v Saunders (75 NJ 200, supra) in which its Supreme Court had invalidated as contrary to the constitutionally protected right of privacy a statute making fornication a criminal offense. Nor is any contrary result compelled by Doe v Commonwealth’s Attorney for City of Richmond (403 F Supp 1199, affd 425 US 901), a civil action in which prayers for a declaratory judgment invalidating and an injunction precluding prosecution under a Virginia sodomy statute, which expressly included consensual sodomy, were denied. Although the District Court in its opinion addressed the constitutionality of the statute and concluded that it was not invalid, its disposition included no declaration of constitutionality, but merely denied the relief requested and dismissed the complaint. A summary affirmance of the dismissal without declaration followed in the United States Supreme Court. In that circumstance the disposition by the Supreme Court does not necessarily signify approval of the reasoning by which the lower court resolved the case (Fusari v Steinberg, 419 US 379, 391 [concurring opn by Burger, Ch. J.]). Apart from the limited precedential value of a summary affirmance (see, e.g., Edelman v Jordan, 415 US 651, 671; Hart & Wechsler, Federal Courts and the Federal System [1977 Supp], at p 112, n 1) in Doe there was lacking any evidence of threatened prosecution of the plaintiffs under the Virginia statute — a factor arguably relevant to their standing to maintain the action (cf. O’Shea v Littleton, 414 US 488). Thus, the affirmance by the Supreme Court of the District Court’s dismissal of the action may have been predicated on a lack of standing on the part of plaintiffs. Subsequent to the decision of the Doe case a member of that court stated that the court had not yet “definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating such behavior (private consensual sexual behavior) among adults” (Carey v Popu lation Servs. Int., 431 US 678, 694, n 17 [opn by Brennan, J., concurred in by a plurality], supra).

That difficult question, to the extent that it is posed by these appeals, is before us now. For the reasons given above, we conclude that the imposition of criminal sanctions such as those contained in section 130.38 of the Penal Law is proscribed by the Constitution of the United States.

Accordingly, on the appeal by the District Attorney of Onondaga County the order of the Appellate Division should be affirmed. On the appeals by defendants Peoples, Goss and Sweat the orders of the Erie County Court should be reversed, the convictions vacated and the informations dismissed.

Jasen, J.

(concurring in result). While I cannot accept the majority’s premise that the so-called “penumbral” right to privacy which first appeared in Griswold v Connecticut (381 US 479) should be extended to encompass and protect any and all types of consensual sexual behavior in private, I nonetheless concur in result herein for I can discern no rational basis upon which the Legislature could have decided to freely allow the conduct in issue among married people and to make identical conduct criminal among those for whom that estate is undesirable or unattainable.

I hasten to add that, in my opinion, the Legislature does have the power to make moral judgments. However, that legislative power is, as all others are, limited by the supervening requirement that it be exercised with the requisite evenhandedness. Here, it was not.

Gabrielli, J.

(dissenting). Without making any effort to define its boundaries or limitations, a majority of my colleagues has recognized for the first time a constitutional right of personal autonomy broad enough to encompass at least the freedom to indulge in those sexual practices which have long been proscribed by our criminal law. Although the majority has attempted to associate this “fundamental right” with the recent Supreme Court decisions creating a “zone of privacy” to protect certain familial decisions, it is apparent that the connection between this case and those decisions exists only on the most superficial level and that the right of sexual choice established today is really a wholly new legal concept bearing little resemblance to the familiar principles enunciated in Griswold v Connecticut (381 US 479) and its progeny. Because I cannot concur in the substance of the majority’s conclusion and because I am concerned with the majority’s failure to articulate an analytical framework for resolving future claims under this amorphous concept of personal autonomy, I am compelled to cast my vote in dissent.

I begin with the premise that none of the cases relied upon by the majority stand for the proposition that there is a generalized right of privacy or personal autonomy implicit in the Federal Bill of Rights. Nor do the cases cited in the majority opinion provide support for the idea that the courts may invoke the due process clause of the Fourteenth Amendment as a predicate for striking down penal provisions which some members of the judiciary may find distasteful or inconsistent with their own notions of fundamental fairness. Indeed, were that not the case, we could not have held as we recently did in People v Shepard (50 NY2d 640) that the statutory ban on the private possession of marihuana (see Penal Law, § 220.03) is not an unconstitutional infringement of the right of an individual to do as he pleases in his own home. To the contrary, had we concluded in Shepard as the majority seems to have concluded in this case that the freedom to choose one’s own form of sensory gratification within the confines of one’s own home is a constitutionally protected “fundamental” right, we could not have sustained the statute at issue in that case on the basis of mere “rationality”, but would instead have been duty bound to conduct a more searching inquiry to determine whether the State’s interest in the legislative ban was truly “compelling” (see, e.g., Roe v Wade, 410 US 113; Shapiro v Thompson, 394 US 618; Griswold v Connecticut, 381 US 479, supra).

Arguing that the People have failed to demonstrate that individuals who engage in consensual acts of sodomy are likely to suffer any serious physical side effects, the majority has attempted to distinguish the statutory prohibition at issue in Shepard from that at issue in this case by stressing that the ban which we upheld in Shepard was justified by a rational legislative finding that marihuana use can be physically harmful (pp 490-491). This assertion, however, represents a seriously flawed understanding of the inquiry that must be pursued in identifying such rights.

In order to determine whether the freedom to engage in a particular activity is a constitutionally protected “fundamental right”, we must look directly to the specific guarantees outlined in the body of the Constitution and the Bill of Rights and to the “penumbras, formed by emanations from those guarantees]” (Griswold v Connecticut, 381 US 479, 484, supra). The nature and extent of the State’s interest in regulating or proscribing the activity in question are simply not relevant considerations at this stage of the inquiry. Indeed, it is only after the court makes a threshold determination as to whether a particular State regulation impinges upon a “fundamental right” that such considerations are brought into play. If it is determined, for example, that a “fundamental right” is being impaired, the regulation at issue cannot be sustained unless it is narrowly tailored to effectuate some “compelling” governmental interest, such as the State’s interest in protecting the health of its citizens (see Roe v Wade, 410 US 113, supra; Shapiro v Thompson, 394 US 618, supra). On the other hand, once it is established that no “fundamental rights” are at issue, the court may uphold the State enactment if it is merely rationally related to some legitimate governmental purpose which falls within the State’s broad police powers (e.g., People v Shepard, 50 NY2d 640, supra). By suggesting that the activity proscribed in this case involves a “fundamental right” simply because it entails no significant danger to health, the majority has created a truly circular constitutional theory and has, in effect, injected an additional level of confusion into this already rather murky area of the law.

Under the analysis utilized by the majority, all private, consensual conduct would necessarily involve the exercise of a constitutionally protected “fundamental right” unless the conduct in question jeopardizes the physical health of the participant. In effect, the majority has held that a State statute regulating private conduct will not pass constitutional muster if it is not designed to prevent physical harm to the individual. Such an analysis, however, can only be based upon an unnecessarily restrictive view of the scope of the State’s power to regulate the conduct of its citizens. In my view, the so-called “police powers” of the State must include the right of the State to regulate the moral conduct of its citizens and “to maintain a decent society” (Jacobellis v Ohio, 378 US 184, 199, quoted in Paris Adult Theatre I v Slaton, 413 US 49, 59-60). Indeed, without mentioning specific provisions, it is apparent that our State’s penal code represents, in part, an expression of our society’s collective view as to what is or is not morally acceptable conduct. And, although the Legislature may not exercise this power in a manner that would impair a constitutionally protected “fundamental right”, it begs the question to suggest, as the majority has, that such a right is necessarily involved whenever the State seeks to regulate conduct pursuant only to its interest in the moral well-being of its citizenry.

We may avoid the circularity in the majority’s reasoning in cases such as this only if we utilize a two-tiered approach, taking care to ascertain at the outset whether a “fundamental right” is actually implicated without regard to the nature of the governmental interest involved in the challenged statute. If no such right is found to exist, we must refrain from interfering with the choice made by the Legislature and rest content upon the assurance that when the challenged statute is no longer palatable to the moral sensibilities of a majority of our State’s citizens, it will simply be repealed.

Although our decision to sustain the statute challenged in Shepard under settled principles of judicial restraint would seem dispositive of the issue in this case, the majority has nonetheless adopted a contrary view and has placed the claim of personal autonomy asserted by defendants in the category of those ill-defined fundamental rights which are protected by the “penumbras” emanating from the Bill of Rights (Griswold v Connecticut, supra, at pp 484-485) and by the concept of ordered liberty implicit in the due process clause of the Fourteenth Amendment (Roe v Wade, supra, at pp 152-153). I cannot agree, however, that the right of an individual to select his own form of sexual gratification should stand on any better footing than does the right of an individual to choose his own brand of intoxicant without governmental interference. Admittedly, the issue in this case is superficially distinguishable from the issue in Shepard, in that here we are concerned with a claim involving freedom of sexual expression, and it is therefore tempting to equate the “right” asserted by defendants with other well-established sexually related rights such as the right of an individual to obtain contraceptives (Griswold v Connecticut, supra), the right of a woman to terminate an unwanted pregnancy (Roe v Wade, supra; see Doe v Bolton, 410 US 179) and the right of a citizen to consume printed pornographic material in the privacy of his own home (Stanley v Georgia, 394 US 557). But the decisions in Griswold, Roe and Stanley cannot fairly be interpreted as collectively establishing an undifferentiated right to unfettered sexual expression (see Note, Constitutionality of Sodomy Statutes, 45 Fordham L Rev 553, 575). Consequently, the majority’s effort to justify its holding today as a mere extension of these decisions is, in the final analysis, entirely unconvincing.

The “fundamental” rights recognized in Griswold, Roe and their progeny are clearly not a product of a belief on the part of the Supreme Court that modern values and changing standards of morality should be incorporated wholesale into the due process clause of the Fourteenth Amendment. To the contrary, the language of the Supreme Court decisions makes clear that the rights which have so far been recognized as part of our due process guarantee are those rights to make certain familial decisions which have been considered sacrosanct and immune from governmental intrusion throughout the history of western civilization. The point has been aptly made by Justice Harlan in his oft-quoted dissent in Poe v Ullman (367 US 497, 553, quoted in Griswold v Connecticut, 381 US 479, supra, at p 499 [Goldberg, J., concurring]): “Adultery, homosexuality and the like are sexual intimacies which this State forbids * * * but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality * * * or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy”. Justice Douglas also made clear the nature of the “right of privacy’.’ that was being protected when he stated in Griswold v Connecticut (supra, at p 486): “We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system * * * It is an association that promotes a way of life”.

This is not to suggest that the Federal Constitution protects only those sexually related decisions that are made within the context of the marital relationship. As the majority notes, such a conclusion was effectively foreclosed when the Supreme Court stated in Eisenstadt v Baird (405 US 438, 453, supra): “It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (emphasis in original).

Nevertheless, contrary to the position taken by the majority, I cannot agree that this language foreshadows a recognition by the Supreme Court of a generalized right to complete sexual freedom for all adults, whether married or single. Instead, as is suggested by the careful wording of the quoted paragraph, I would conclude that Eisenstadt stands only for the narrower proposition that the ancient and “fundamental” right of an individual to decide “whether to bear or beget a child” cannot be limited to married adults (accord Hindes, Morality Enforcement Through the Criminal Law and the Modern Doctrine of Substantive Due Process, 126 U of Pa L Rev 344, 361-362). Under this view, Eisenstadt may be regarded as a simple extension of a long line of eases protecting “freedom of personal choice in matters of marriage and family life” (Roe v Wade, 410 US 113, 169, supra [Stewart, J., concurring; emphasis supplied] ; see Loving v Virginia, 388 US 1 [personal decisions relating to marriage]; Prince v Massachusetts, 321 US 158 [decisions relating to family relationships] ; Skinner v Oklahoma, 316 US 535 [decisions relating to procreation] ; Pierce v Society of Sisters, 268 US 510; Meyer v Nebraska, 262 US 390 [decisions relating to childrearing and education]). Indeed, even the highly controversial decision in Roe v Wade (supra) holding the freedom of women to obtain abortions to be a constitutionally protected right may be regarded as part of the continuum of cases that bring within the ambit of the due process clause those familial decisions that historically have enjoyed immunity from governmental regulation. As the Roe court was careful to point out: “It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century” (410 US 113, 129, supra).

The majority impliedly recognizes that the Supreme Court has to date limited the protection of the Constitution to decisions relating to the traditionally protected areas of family life, marital intimacy and procreation. Yet the majority has also concluded that there exists “no rational basis * * * for excluding from the same protection decisions * * * to seek sexual gratification from what at least once was commonly regarded as ‘deviant’ conduct” (p 488). I must disagree, however, because my reading of the recent Supreme Court cases leads me to the conclusion that the distinction repeatedly drawn in those cases between freedom of choice in the historically insulated areas of procreation, family life and marital relationships on the one hand and the general freedom of unfettered sexual choice on the other is more than just a temporary or artificial one.

The assertion that the theories espoused in Griswold, Roe and their progeny may be likened to the discredited doctrine of “substantive due process” (see, e.g., Coppage v Kansas, 236 US 1; Lochner v New York, 198 US 45; Allgeyer v Louisiana, 165 US 578; see, generally, Tribe, American Constitutional Law, §§ 8-1 through 8-7) would not come as a surprise to any serious constitutional scholar. Many have made the observation that the modern notion of “fundamental rights” bears a striking resemblance to the Lochner doctrine under which State economic and social regulations were routinely struck down as violative of certain basic, substantive freedoms that were thought to inhere in the due process clauses of the Fifth and Fourteenth Amendments (see, e.g., Roe v Wade, 410 US 113, 167-171 [Stewart, J., concurring], 171-178 [Rehnquist, J., dissenting], supra; Griswold v Connecticut, 381 US 479, 514-527 [Black, J., dissenting], supra; Tribe, American Constitutional Law, § 15-2; Craven, Personhood: The Right to Be Let Alone, 1976 Duke LJ 699, 712-713; Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 S Ct Rev 159). The Lochner doctrine was ultimately rejected by the Supreme Court, in part because it had placed the court in the position of a “superlegislature” enabling it to use the “vague contours” of the due process clause as a vehicle for striking down State legislation which it found to be inconsistent with its own contemporary views of natural law (Ferguson v Skrupa, 372 US 726; accord Williamson v Lee Opt. Co., 348 US 483, 488; Day-Brite Light. v Missouri, 342 US 421, 423). Indeed, inherent in the Lochner doctrine was the very real danger that a countermajoritarian institution such as the court would impose upon the elected officials of State government its ad hoc notions regarding the substantive content of the term “liberty” and would place restrictions upon the States’ power to govern over and above those mandated by the specific provisions contained in the body of the Constitution and the Bill of Rights. It was out of a recognition of this danger that the rule of judicial restraint and minimal judicial scrutiny of State legislation was born (see Tribe, American Constitutional Law, § 8-7).

In the wake of Griswold and Roe, it is no longer an intellectually defensible position to suggest that the once discredited doctrine of “substantive due process” is entirely dead and buried. On the other hand, it is far from clear that those two cases heralded an unqualified return to the days when a Judge acted as “a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness” (Cardozo, Selected Writings, Nature of the Judicial Process, at p 164, quqted in People v Shepard, 50 NY2d 640, 646, supra). As the language of those decisions and their forerunners indicates, the “fundamental” rights so far recognized by the Supreme Court under the modern version of “substantive due process” have been strictly limited to those that may be traced to matters that were traditionally insulated from g’overnmental intrusion. In my view, it is precisely this limitation that differentiates the relatively recent “fundamental right” concept from the long discarded and truly pernicious doctrine enunciated in Lochner v New York (supra).

To suggest, as the majority does, that the concept of “fundamental rights” should be expanded to include a generalized right to sexual gratification in whatever form would be, in effect, to bring the law of “substantive due process” full circle by eliminating all of its present salutary limitations and restoring it to its former status as a vehicle for lawmaking by judicial fiat. The majority acknowledges in passing that the sexual,choice the defendants now assert as a matter of constitutional right was once regarded as “ ‘deviant’ conduct” (p 488), but it erroneously ascribes no legal significance to that fact, relegating it instead to an irrelevant phenomenon of theology and privately held moral beliefs. This rather glib refusal to take account of the historical treatment of consensual sodomy as criminally punishable conduct has left a gaping hole in the majority’s analysis.

In contrast to decisions relating to family life, matrimony and procreation, decisions involving pure sexual gratification have been subject to State intervention throughout the history of western civilization (see Griswold v Connecticut, 381 US 479, 505, supra [White, J., concurring]; Poe v Ullman, 367 US 497, 553, supra [Harlan, J., dissenting] ; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, affd 425 US 901; Dawson v Vance, 329 F Supp 1320, 1322; State v Bateman, 25 Ariz App 1, 4, revd in part 113 Ariz 107 [en banc]). Scholars from Aquinas to Blackstone considered even consensual sodomy to be as heinous as the crime of rape (43 Aquinas, Summa Theologiae, pp 246-249 [Gilby ed] ; 4 Blackstone’s commentaries *215; see, generally, Richards, Unnatural Acts and the Constitutional Right to. Privacy: A Moral Theory, 45 Fordham L Rev 1281, 1292-1298). Indeed, as early as 1553 during the reign of Henry VIII, England enacted statutes prohibiting sodomy which became part of the American common law at the time of the American Revolution and were later embodied in the penal codes of the various States. Thus, although some may take offense at the persistence of the proscriptions against consensual sodomy in our modern law, the fact remains that western man has never been free to pursue his own choice of sexual gratification without fear of State interference. Consequently, it simply cannot be said that such freedom is an integral part of our concept of ordered liberty as embodied in the due process clauses of the Fifth and Fourteenth Amendments.

In view of the continuous and unbroken history of anti-sodomy laws in the United States, the majority’s decision to strike down New York’s statute prohibiting consensual sodomy can only be regarded as an act of judicial legislation creating a “fundamental right” where none has heretofore existed. As such, today’s decision represents a radical departure from cases such as Griswold and Roe, in which the Supreme Court merely swept aside State laws which impaired or prohibited entirely the free exercise of rights that traditionally had been recognized in western thought as being beyond the reach of government. I cannot concur in the majority’s conclusion. As Justice Black once observed, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision” (Griswold v Connecticut, 381 US 479, 510, supra [Black, J., dissenting]) .

Accordingly, I cast my vote to reverse the order of the Appellate Division in People v Onofre and to affirm the respective orders of the County Court in People v Peoples, People v Goss and People v Sweat.

Judges Wachtler, Fuchsberg and Meyer concur with Judge Jones; Judge Jasen concurs in result in a separate opinion; Judge Gabrielli dissents and votes to reverse in another opinion in which Chief Judge Cooke concurs.

In People v Onofre: Order affirmed.

Judges Wachtler, Fuchsberg and Meyer concur with Judge Jones; Judge Jasen concurs in result in a separate opinion; Judge Gabrielli dissents and votes to affirm in another opinion in which Chief Judge Cooke concurs.

In People v Peoples and Goss and People v Sweat: Orders reversed, convictions vacated and informations dismissed.

      . Defendant’s conviction was not predicated on a guilty plea as inadvertently recited in the opinion at the Appellate Division.

      . We are not unmindful that both District Attorneys seek to draw support from conduct by defendants which they claim either drew the admitted acts of sodomy into the classification of public, not private, conduct or which constituted a waiver of the right to assert a right of privacy. Because our disposition of these appeals rests also on a denial of equal protection rights we need not pass on the contention by the District Attorney of Erie County that the acts committed by defendants Peoples, Goss and Sweat, occurring in vehicles parked on a street or highway at times when traffic might be expected to be light but which could have been observed by a passerby should one have happened on the vehicles and looked inside, lost any claim to being private acts. (On oral argument counsel for the defendants expressly conceded that the acts took place “in public”.) The suggestion by the District Attorney of Onondaga County that because defendant Onofre presumably participated in the taking of photographs of himself while engaging in acts of sodomy and thereafter displayed such photographs to the District Attorney, he was foreclosed from asserting a right of privacy fails to distinguish between the two aspects of the right as subsequently discussed. Neither the photographing nor the display of the pictures (which was done only after charges of sodomy in the first degree and sexual abuse had been laid against him) affected the secluded nature of the conduct, which was done in defendant’s own home free from any observation by the public, although, conceivably, he may thereby have lost any claim to the secrecy aspect of the right to privacy — an aspect he is not now asserting. No distinction between these two aspects was observed in Lovisi v Slayton (363 F Supp 620, affd 539 F2d 349, cert den 429 US 977), the decision which appears to have turned on defendants’ failure to keep the photographs in such a way that their children would be denied access to them, which the court regarded as a breach of defendants’ responsibility to ensure that the seclusion surrounding their acts was preserved (363 F Supp, p 627).

      . We express no view as to any theological, moral or psychological evaluation of consensual sodomy. These are aspects of the issue on which informed, competent authorities and individuals may and do differ. Contrary to the view expressed by the dissent, although on occasion it does serve such ends, it is not the function of the Penal Law in our governmental policy to provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values. Thus, it has been deemed irrelevant by the United States Supreme Court that the purchase and use of contraceptives by unmarried persons would arouse moral indignation among broad segments of our community or that the viewing of pornographic materials even within the privacy of one’s home would not evoke general approbation (Eisenstadt v Baird, 405 US 438, supra; Stanley v Georgia, 394 US 557, supra). We are not unmindful of the sensibilities of many persons who are deeply persuaded that consensual sodomy is evil and should be prohibited. That is not the issue before us. The issue before us is whether, assuming that at least at present it is the will of the community (as expressed in legislative enactment) to prohibit consensual sodomy, the Federal Constitution permits recourse to the sanctions of the criminal law for the achievement of that objective. The community and its members are entirely free to employ theological teaching, moral suasion, parental advise, psychological and psychiatric counseling and other noncoercive means to condemn the practice of consenual sodomy. The narrow question before us is whether the Federal Constitution permits the use of the criminal law for that purpose.

      . Notable also is the fact that when the Model Penal Code was adopted by the American Law Institute a subsection which would have made consensual sodomy a misdemeanor (§ 207.5, subd [4]) was consciously omitted (ABA-ALI Model Penal Code, Proposed Official Draft, § 213.2, Status of Section, pp 145-146; Tent Draft No. 4, pp 93, 276).

      . Twenty-two States have now decriminalized consensual sodomy between adults in private (Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings LJ 799, 950-951; NJ Stats Ann, § 2C:98-2).

      . If we are correct in the view earlier expressed in this opinion that section 130.38 of the Penal Law infringes on defendants’ right of privacy which is a fundamental right, then, as observed, in Eisenstadt, the statutory classification “would have to be not merely rationally related to a valid public purpose but necessary to the achievement of a compelling state interest” (405 US, p 447, n 7). As was so in Eisenstadt, however, we do not need to measure the statute by that test inasmuch as it fails to satisfy even the more lenient rational basis standard.

      . I find additional support for my interpretation of the Eisenstadt opinion in subsequent pronouncements by the Supreme Court. In Paris Adult Theatre 1 v Slaton (413 US 49, 68), for example, the court squarely rejected the argument that “conduct which directly involves ‘consenting adults’ only has, for that sole reason, a special claim to constitutional protection”. In response to this contention, the court observed: “Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take” (footnotes omitted).
      Similarly, in Roe v Wade (410 US 113,154), the Supreme Court refused to accept the contention that “the claim * * * that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions”. The Roe court flatly stated that “[t]he Court has refused to recognize an unlimited right of this kind in the past”.

      . While the majority has placed great reliance upon the decision of the Supreme Court in Stanley v Georgia (394 US 557) as support for the proposition that the Bill of Rights encompasses a general right of privacy and personal autonomy, that decision, in my view, is not susceptible of such an expansive reading (compare Paris Adult Theatre I v Slaton, 413 US 49). In Stanley, the court struck down a State statute that penalized the private possession of printed pornographic material in the home. Although the Stanley court acknowledged that the obscene materials themselves would not ordinarily be covered by the protection of the First Amendment (see Roth v United States, 354 US 476), it made clear that its decision to invalidate the challenged legislation was based in large measure upon the individual’s First Amendment “right to receive information and ideas, regardless of their social worth” "(394 US, at p 564). Indeed, in a significant passage of its opinion, the Stanley court stated: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch” (id., at p 565). The so-called “privacy right” recognized in Stanley may thus be regarded as a simple extension of the First Amendment guarantee against governmental interference with the transmission of ideas. That the “privacy right” articulated in Stanley does not extend beyond the “right to receive information” and into the claimed right to receive “sensations”, whether sexually or chemically induced, was reaffirmed in our recent decision in People v Shepard (50 NY2d 640, supra).

      . Without intending to sound a general alarm, I cannot help but wonder what the limits of the majority’s new doctrine of “personal autonomy” might be. If, for example, the freedom of an individual to engage in acts of consensual sodomy is truly a “fundamental right”, it would seem fairly clear that, absent a “compelling state interest”, the State cannot impose a burden upon the free exercise of that right by limiting the individual’s access to government jobs (cf. Shapiro v Thompson, 394 US 618). Moreover, if the only criterion for determing when particular conduct should be deemed to be constitutionally protected is whether the conduct affects society in a direct and tangible way, then it is difficult to perceive how a State may lawfully interfere with such consensual practices as euthanasia, marihuana smoking, prostitution and homosexual marriage. I very much regret that the majority has failed in its discussion of the “fundamental right” to personal autonomy to set forth some analytical framework for resolving difficult questions such as these.

      . Inasmuch as I conclude that there is no “fundamental right” to sexual gratification, I must also consider whether section 130.38 of the Penal Law represents an irrational classification on the basis of marital status in violation of the equal protection clause of the Fourteenth Amendment. Since marital status has never been recognized as a “suspect classification” (compare Execu^ tive Law, § 296), the legislative distinction between marrieds and unmarrieds may stand if it bears some rational relation to a legitimate governmental interest.
      Unlike my colleagues in the majority, I have no trouble concluding that the legislative decision to permit married individuals to engage in conduct that is forbidden to the unmarried is rationally based. While the State may prefer that none of its citizens engage in the proscribed forms of sexual gratification, it may properly limit its statutory prohibition to those that are unmarried oh the theory that the institution of marriage is so important to our society that even offensive intimacies between married individuals should be tolerated. The statute at issue in this case is thus distinguishable from the statute at issue in Eisenstadt v Baird (405 US 438), where the Supreme Court concluded that a ban on the sale of contraceptives to unmarrieds only had no relation to any legitimate government interest.