author: Bellacosa, J. Chief Judge Wachtler

text:
    In the Matter of Phillip Seelig, as President of the Correction Officers Benevolent Association of the City of New York, Inc., et al., Appellants, v Richard J. Koehler, as Correction Commissioner of the City of New York, et al., Respondents.
    Argued March 28, 1990;
    decided May 8, 1990
    POINTS OF COUNSEL

      Irving Anolik and Barbara H. Daly for appellants.

      Victor A. Kovner, Corporation Counsel (Michael S. Adler and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Bellacosa, J.

The New York City Commissioner of Correction promulgated a random urinalysis drug-testing program for all uniformed officers because, "[i]n spite of an aggressive drug prevention educational program and testing procedures, including an aggressive reasonable suspicion testing program, the Department has documented a serious drug abuse problem among a significant number of its members.” (Record on app, at 30 [Commissioner’s Directive, Nov. 17, 1987].) The union representing the guards and its president brought this article 78 proceeding to block the implementation of the program on Fourth Amendment grounds. State Supreme Court granted the petition and enjoined the testing. The Appellate Division reversed and dismissed the proceeding, with two Justices dissenting. Petitioners appealed as of right, and we granted a stay of implementation of the program pending the outcome of this appeal. We now affirm and uphold the random drug-testing program of the New York City Correction Department.

THE CONTEXT

In 1987, this court grappled with the constitutional implications of random drug testing of probationary school teachers and held that urinalysis drug testing could proceed only on the reasonable suspicion predicate (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57). We disapproved random searches there and observed that they "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” (id., at 70 [emphasis added]). The following year, this balancing analysis was applied to a particular subset of public employees — the Organized Crime Control Bureau (OCCB) of the New York City Police Department — in Matter of Caruso v Ward (72 NY2d 432). The court concluded — in the presence of "factors * * * which take this case out of Patchogue” — that random drug testing was not unconstitutional (id., at 439). Special emphasis was given to the diminished level of Fourth Amendment expectations of those employees.

In this case also, each aspect of the Patchogue-Caruso exception test is met. We agree with and note especially this cogent summary in Justice Sullivan’s majority opinion below: "We find, in light of the Department’s compelling interest in deterring and detecting drug use among correction officers, whose diminished privacy expectations are outweighed by that interest, and its promulgation of detailed regulations which, with respect to such drug testing, are sufficient to prevent unbridled administrative discretion and to preserve privacy to the maximum extent feasible, that the Commissioner’s plan is not constitutionally infirm.” (Matter of Seelig v Koehler, 151 AD2d 53, 57.)

Our holding today, despite the hyperbolic attributions of the dissenting opinion, does no more than conclude that the particular combination of crucial circumstances comprising the paramilitary workplace milieu of jail guards, their severely diminished privacy expectations under a sedulous set of testing procedures, in the face of the significant State interest, satisfy the analytic and constitutional underpinnings of Patchogue and Caruso — a concededly rigorous set of standards. Key factors, peculiar to this case, which we conclude are sufficient to warrant the substantial intrusion of random testing searches, include:

The employment is in a unique, high-risk, hazardous setting;

The guards have voluntarily agreed to submit to a previously enacted series of urinalyses, both random and suspicion-based;

The guards are already subject to a host of intrusive searches of person and property with no suspicion predicate;

The Commissioner has demonstrated drug use in his ranks and an inability to stop it with currently available procedures;

A guard’s usage increases substantially the inherent dangerousness of illicit drugs, putting at risk the lives of inmates and fellow officers;

A drug-compromised guard establishes a two-way security breach — drugs and weapons are more easily gotten into jail and prisoners can more easily be gotten out;

The challenged testing procedures guard the privacy and dignity of the subjects as carefully as possible;

The accuracy and integrity of the test results are meticulously circumscribed;

A significant appeals process is granted to those who test positive.

Nevertheless, these City of New York jail guards make the argument that they may not be tested for drugs unless the City can show individualized reasonable suspicion. Their claim rests on State and Federal constitutional guarantees against unreasonable search and seizure which apply to urinalysis drug testing (NY Const, art I, § 12; US Const 4th Amend; Matter of Caruso v Ward, 72 NY2d 432, supra; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57, supra; Treasury Employees v Von Raab, 489 US 656; Skinner v Railway Labor Executives’ Assn., 489 US 602).

THE PRIVACY INTEREST

Applicants pursue employment as jail guards with the understanding and acceptance of invasions of personal privacy unknown and unacceptable in the civilian world. We note another particularly apt portion of the majority opinion below: "Not all governmental employees enjoy the same level of expectation of privacy. The privacy expectations of any particular group is markedly diminished by such factors as the employees’ voluntary pursuit of a position they know to be pervasively regulated for reasons of safety and the employees’ acceptance of severe intrusions upon their privacy. (National Treasury Employees Union v Von Raab, 489 US [656], 109 S Ct 1384, supra; Skinner v Railway Labor Executives’ Assn., 489 US [602], 109 S Ct 1402, supra; Matter of Caruso v Ward, supra, 72 NY2d, at 440.) Correction officers are traditionally among the most heavily regulated groups of governmental employees and also among those who accept the greatest intrusions upon their privacy. A number of courts have held that correction officers, because of the confined environment in which they work, the strict security measures governing their conduct, and the other distinctive features of their employment, have diminished expectations of privacy with regard to security-related employer intrusions. (See, e.g., Poole v Stephens, 688 F Supp 149, 155; Policemen’s Benevolent Assn. v Township of Washington, 672 F Supp 779, 793, revd on other grounds 850 F2d 133, cert denied [490] US [1004], 109 S Ct 1637.)” (Matter of Seelig v Koehler, 151 AD2d, supra, at 62.)

Before achieving tenure, Department of Correction employees currently undergo five urinalyses — one each at the beginning and end of an 18-month probation period, and three random tests during probation. In these pretenure urinalyses, a supervisor directly observes the production of the specimen. In the protocol at issue, the specimen is collected behind a closed door in a private stall. Notably, the invalidated procedure in Patchogue and the validated one in Caruso involved direct observation. Petitioners, however, concede the necessity of the more intrusive pretenure program and they do not challenge its constitutionality (see, record on app, at 22 [petition, K 18]; see also, Matter of McKenzie v Jackson, 75 NY2d 995 [decided today]). We note, too, that the OCCB officers also underwent at least three pretenure drug tests, a significant factor leading to our conclusion that "the substantial privacy intrusions to which [they] already have subjected themselves[ ] reduce[ ] their privacy interest to a minimal or insubstantial level such that the admittedly crucial State interest justifies the random testing.” (Matter of Caruso v Ward, 72 NY2d, supra, at 439.) The "unique” circumstances of the OCCB officers in Caruso do not diminish the ratio decidendi of that case or the exception principle from Patchogue on which Caruso built its holding. Of course, the facts in this case are different, as is so with all subsequent cases in which a precedent — the holding — is applied in the traditional common-law process. Thus, the unique fact-specific application here is no less a narrow exception in the Patchogue-Caruso line and represents no "abandoning” of the appropriate constitutional analysis (see, dissenting opn, at 97). Also, the number or categories of particular public employees’ groups is not alone dispositive. Rather, the identification and weighing of all the unique and particular facts of each case governs.

The extremely diminished privacy expectations of the jail guards in this case are initially no less than that of the OCCB members. We added this admonition in Caruso: "our decision in no way impinges on their 4th Amendment rights to be secure against unreasonable searches and seizures of [OCCB officers’] persons, homes, cars, lockers or other personal effects under traditional probable cause standards” (Matter of Caruso v Ward, supra, at 442 [citation omitted]). In those respects, the entire jail guard force has yielded even more privacy protections than the OCCB cadre. For example, the Rules and Regulations of the New York City Department of Correction provide that an officer is subject to search at any time, and force is authorized if the officer is not cooperative (rule 5.20.090). Any car driven by a correction officer in or out of jail facilities is subject to search, as is any package for which the officer has been given permission to carry into or out of a jail (rule 5.20.050). Correction officers’ lockers are regularly searched (rule 5.20.090). It can be confidently stated, therefore, that these jail guards retain the barest minimal privacy expectation, not because they should be afforded any lesser status or constitutional protection and not because they are being treated as "prisoners,” but because it is inherent in their freely chosen work and work conditions. We do not doubt that the majority of these guards are certain to be law abiding, drug free and commendably committed to their tough public jobs. Nevertheless, they suffer a reduced order of constitutional circumspection proportionate to their accepted level of humble privacy expectations.

THE STATE INTEREST

In Matter of Caruso v Ward (72 NY2d 432, 441, supra), we observed that "[t]he terror-filled world [OCCB members] are working in requires the sternest precautionary safeguards to weed out drug abusers from their own ranks”. Yet they work outside in the streets and communities. Jail guards, on the other hand, daily toil among incarcerated individuals, many of whom will pay any price and do any deed to escape or to ameliorate their confinement. A prison is a "unique place fraught with serious security dangers” (Bell v Wolfish, 441 US 520, 559), and its operation " 'is at best an extraordinarily difficult undertaking’ ” (People ex rel. Vega v Smith, 66 NY2d 130, 141, quoting Wolff v McDonnell, 418 US 539, 566). The prevention, detection and resolution of the myriad daily crises in this netherworld demand the acutest sensory awareness, undulled by the use of illicit drugs (see, Matter of Figueroa v Bronstein, 38 NY2d 533, 535). The public employer and society are unquestionably entitled to the guard’s undeviating concentration and split-second good judgment and self-control.

The crucial nature of this State interest is not some hyperbolic or abstract proposition. The Commissioner made the case for random drug testing of the employees on empirical data, on intuitive professional judgment and experience, and only after other methods failed to stem the tide. Despite the Department’s regimen of education and reasonable suspicion testing, in a recent 32-month period, drug-related disciplinary charges were brought against 149 tenured guards. In 1986 and 1987, 2.9% of probationary guards tested drug positive, despite being warned about the tests (see, record on app, at 136-137 [affidavit of Correction Dept Chief of Operations Thomas Murray]). Downplaying the implications of the dreadful data cannot dull the gripping reality. With all the Commissioner’s existing tools in operation, many jail guards were caught in drug-related incidents. These data also stand in sharp contrast to the only 10 OCCB members facing drug-related disciplinary charges over a four-year period in Matter of Caruso (see, 72 NY2d, supra, at 442) and the lack of any evidence of any drug use problem among potential test subjects in Matter of Patchogue-Medford Congress of Teachers v Board of Educ. (70 NY2d 57, supra) and Treasury Employees v Von Raab (489 US, supra, at 672-673).

The Supreme Court’s rationale upholding the constitutionality of suspicionless drug testing of customs agents in Von Raab (id.) offers another instructive perspective. It focused significantly on two components of the agents’ duties pertinent here as well: their responsibility for interdicting drugs and the carrying of firearms. New York City jails are populated by substantial numbers of the State’s criminal drug users; half the inmates are drug addicts and 90% are drug users or abusers. Guards represent a critical barrier between inmates and suppliers on the outside; drug-compromised guards breach that barrier and that makes them and this case very different from most others.

Petitioners-appellants, nevertheless, suggest that random drug testing is not needed for them in any event since they "generally do not carry firearms while on duty and the number who do is absolutely at a minimum” (appellant’s brief, at 22). This suggestion seems disingenuous, since Department policy forbids guards to carry firearms because they operate in places too dangerous for guns. Guards are outnumbered by the inmates and are denied weapons because the Department knows that many prisoners, already illegally armed with makeshift devices, would thus have the potential to acquire real weapons taken from the guards in their midst (see, record on app, at 133 [affidavit of Chief of Operations of NY City Dept of Correction]). The primary "weapon” of the guard is alert, clear-headed, measured responsiveness to a daily, unrelentingly tense, caged coexistence.

These jailers are on call 24 hours a day and, "[b]ecause successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from [their supervisors] personal information that bears directly on their fitness.” (Treasury Employees v Von Raab, 489 US, supra, at 672, citing Matter of Caruso v Ward, 72 NY2d, supra, at 441.) Indeed, OCCB officers "regularly” interact with the drug world inhabitants out in the hard streets; jail guards "constantly” interact with the most dangerous of society’s concentrated mass in the confines of their walled symbiotic universe. We conclude that jail officials must be allowed to use proportionate and constitutional means to prevent, or at least to lessen, the volatile infiltration of drugs into the jails in and on the bodies of the guards themselves.

THE PROCEDURAL SAFEGUARDS

We now assess the adequacy of the program’s proposed protocols, and whether the tested employees are subjected to "unregulated discretion” (Matter of Caruso v Ward, 72 NY2d, supra, at 438; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d, supra, at 70). A computer randomly selects 50 officers (out of a force of 7,200) every two weeks. A tenured officer may be discharged for refusing to comply with test procedures, but only after a hearing. The employee being tested may be accompanied by a union representative or attorney. State-of-the-art techniques — substantially the same as those approved by the Supreme Court in Von Raab (Treasury Employees v Von Raab, 489 US 656, supra) — are to be used in collecting the specimen, assuring its integrity, preserving it for challenge and for testing and retestings. If the sample tests positive, it is retested by a more sophisticated method to ensure reliability. If the result is unchanged, the employee who supplied the sample may choose a different State-certified laboratory to test the sample yet again. As noted earlier, the specimen is produced in a private, closed stall, unlike the directly observed procedures elsewhere countenanced. The protocols overall allow for very little discretion and certainly not that which could be called "unregulated discretion”. Finally, they assiduously protect the residual privacy expectations of the guards.

CONCLUSION

By choosing to work in the paramilitary milieu of the City Correction Department, guards voluntarily sacrifice certain cherished freedoms. The search procedure we authorize today, after satisfaction of our rigorous standards, is an exceptional reasonable addition, albeit a significant one, to a long list of other searches, also significant in their places, times and contexts, to which these uniformed guards have already submitted themselves. Our holding portends no avalanche of such searches or any diminishment of our vigilance in the protection of constitutional safeguards.

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

Chief Judge Wachtler

(dissenting). The majority’s decision, permitting random urine testing of the entire uniformed force of the New York City Department of Correction, represents an unwarranted extension of the narrow exception permitting such searches only under the most extraordinary circumstances.

The narrow exception on which the majority relies may well be applied, as it was in Matter of Caruso v Ward (72 NY2d 432, 434, 441), to an "elite voluntary corps within the New York City Police Department” which constituted "its main line [of] offense and defense in the war against drug trafficking.” In that case we emphasized that the "[d]aily exposure to drug users and traffickers [and] staggering sums of money” set this small, elite group apart from other police officers. Significantly we did not hold that police officers generally, who might occasionally be subject to the same temptations, could also be subject to random urine testing and indeed we held that they could not (Matter of Caruso v Ward, supra, at 439). Instead we took great pains to point out that we were only recognizing a "narrow exception” on "unique facts” involving "these particular officers” who were members of an "elite

corps” who "specialized” in "hazardous drug-related investigations” and who volunteered for this special duty knowing well in advance "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” and thus "will [have to] operate in fish-bowl like circumstances undreamed of by Calpurnia herself’ (Matter of Caruso v Ward, supra, at 434, 435, 439, 440, 441).

With this narrow exception in hand, the majority now permits periodic, random urine testing of every uniformed member of the Department of Correction in the City of New York. It does so by abandoning many of the unique, limiting factors present in Caruso and adopting instead a "fact-specific” analysis which apparently will vary from case to case without fixed or discernible limits.

Following this precedent, it would be difficult to imagine how any officer, or anyone employed in the world of law enforcement or even anyone associated with the criminal justice system, would be free of the requirement of random, suspicionless urine testing once someone in authority found it desirable. This turns the narrow exception into a general warrant permitting the government to intrude in the most offensive manner on the privacy and dignity of a large segment of our community.

There is no question that a urine test ordered by the government to detect drug abuse constitutes a search under both the State and Federal Constitutions (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; Matter of Caruso v Ward, supra; Treasury Employees v Von Raab, 489 US 656; Skinner v Railway Labor Executives’ Assn., 489 US 602). It is also clear that under special circumstances the government may require persons serving the public to submit to such test on a random basis without the constitutional protections generally indispensable to any search (Matter of Caruso v Ward, supra; Treasury Employees v Von Raab, supra; Skinner v Railway Labor Executives’ Assn., supra). This is not an ordinary exception, but actually a double exception to what the Constitution generally requires: a warrant and probable cause or reasonable suspicion. It is also clear from our cases that this extraordinary exception is only available in the narrowest of circumstances.

In Matter of Patchogue-Medford Congress of Teachers v Board of Educ. (supra), we held that probationary teachers in the public school system could not be required constitutionally to submit to random urine testing for drug abuse. We noted that those who chose to work for the government, including teachers, have a diminished expectation of privacy because of the State’s legitimate interest in determining their fitness to perform their jobs and that this permitted the State to require them to submit to urine testing whenever there was reason to believe that they were using drugs. The school district was not required to obtain a warrant or establish probable cause. But we rejected the district’s argument that the teachers’ expectation of privacy was so diminished that they could be subjected to random urine tests at the will of the employer. We noted (at 70): "random searches conducted by the State without reasonable suspicion are closely scrutinized, and are 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.” We found this narrow exception inapplicable in that case because a compelled urine test is not a minimal intrusion on the dignity and privacy of the individual and could not be justified by the State’s general interest in determining the fitness of its teachers and maintaining a drug-free environment in the schools.

More recently in Matter of Caruso v Ward (supra), as noted above, we upheld a random urine test program as applied to an elite unit of police officers in the New York City Police Department. The opinion there shows that urine testing constitutes a great intrusion on an individual’s privacy which cannot be permitted unless the individual’s job is uniquely sensitive and thus the public accountability so great that the expectation of privacy is insubstantial.

Relying on Patchogue, we held that such an intrusion is not warranted with respect to public employees generally although their expectations of privacy are diminished to some extent by the State’s legitimate right to inquire into their ability to perform the job. But we also held that police officers generally could not be required to submit to such tests although their privacy expectations were "even further diminished by virtue of their membership in a paramilitary force, the integrity of which is a recognized and important State concern.” (Matter of Caruso v Ward, supra, at 439.) If we were only dealing with ordinary police officers, we noted, the random tests could not be sustained because "the special status of police officers does not alone reduce their expectation of privacy to 'minimum’ level in respect to random drug testing” (Matter of Caruso v Ward, supra, at 439).

What we found determinative in Caruso was that the officers involved were not ordinary police officers, but "special officers”. They had volunteered from the ranks to participate as select members of an "elite group”, with special job benefits and career opportunities, which specialized in investigating highly sensitive drug transactions, and which by definition and common understanding called for performance and integrity, and thus public accountability, well beyond what was expected of police officers generally. On those unique facts we were persuaded that the privacy expectations of these particular officers had become insubstantial and that a narrow exception was warranted permitting the police department to require these particular officers to submit to periodic urine testing. We noted that by voluntarily seeking this special assignment and accepting the extraordinary public scrutiny which it necessarily required they had "already * * * subjected themselves” to "substantial privacy intrusions” well "above those already imposed on the police force at large.” (72 NY2d, supra, at 439, 440.)

Now we have before us a case in which the Commissioner of Correction in the City of New York wants compulsory random drug testing for every uniformed member of his Department. The Commissioner urges, and a majority of this court agrees, that these employees have no reasonable expectation of privacy with respect to these tests because of the following factors: they are members of a paramilitary organization, are authorized to carry firearms, are deemed to be "on duty” 24 hours a day, are charged with enforcing the laws including those relating to illegal drugs, that they are therefore subject to corrupting influences which may impair their integrity and ability to perform in emergencies and that they voluntarily chose the position, consented to extensive background investigations and submitted to periodic drug testing during their probationary terms. In addition there is evidence that a small percentage of correction officers have been involved in illegal drug usage or transactions in the recent past.

All of this is true, but it is also true of police officers generally. In fact the only apparent distinction between these officers and ordinary police officers is that correction officers enforce the law in the controlled environment of a secure correctional facility, where they are not generally permitted to carry firearms, and are not likely to be exposed to large drug deals or staggering sums of money that other officers encounter on the streets. To be sure all those passing through the prison’s gates, employees and visitors alike, may reasonably be subject to limited searches of clothing and personal possessions for contraband. But submitting to screening of that nature is not an open invitation to the more intimate search involved in urine testing.

Moreover, the fact that these officers are subject to such close supervision and constant scrutiny shows that the employer here is in a better position than any to detect illegal drug use by observation at the workplace. The employer can subject officers to a personal search at any time; their cars— and any packages they carry — can be searched as they enter and leave the facilities; their lockers are regularly searched; and they work in a confined atmosphere, subject to close supervision. There is, therefore, no basis for relieving this employer of the minimal reasonable suspicion requirement. If reasonable suspicion is inadequate under the circumstances of this work environment, then it will always be inadequate and this limitation on the narrow exception is a nullity.

What the majority has done in effect is to treat prison guards as prisoners. Its reliance on Bell v Wolfish (441 US 520), to demonstrate a diminished expectation of privacy in the prison environment is telling because the case deals with the rights of prisoners. Those who enforce the law in a jail certainly should enjoy greater privacy rights than those who have been confined.

In short, this case deals with ordinary law enforcement officers performing normal patrol duties in the correctional institutions; it does not involve a small segment of the Correction Department or an elite corps of officers subject to extraordinary scrutiny beyond what is expected by law enforcement officers generally. Indeed, in many parts of the State, the Sheriff’s Department performs both police roles interchangeably, enforcing the law in the streets and in the prisons. To apply the exception permitted in Caruso which was prompted by the unique factors present there, in a case where they do not exist, converts the narrow exception into a broad one without tolerable, predictable or even durable limits.

The government can always argue, as the Commissioner does here, that random urine testing is the only effective means for detecting drug abuse. In Caruso, the necessity for such testing was urged because OCCB officers operated in the field, independently, not subject to the ready observation of their superiors; in direct contrast, it is now argued that correction officers must be so tested precisely because of their confinement in close quarters, where obviously they are subject to the ready observation of their superiors. And arguments can always be made that one group or another serving the public, even in the private sector, should be above suspicion of drug use and thus subject to random urine testing ordered by the government. The arguments are difficult to resist because urine testing is effective and eradication of illegal drug usage is such a desirable goal.

But they are equally difficult to reconcile with the Constitution when the result is a progressive erosion of prior restrictions and a continuous expansion of the government’s power to search large segments of our community without a warrant, without probable cause, and without reason to suspect them of illegal acts. Searching thousands of innocent people to discover a few offenders has long been considered the hallmark of unreasonableness. This basic constitutional principle was not meant to protect only criminals, or those suspected of crime; it was designed to protect us all, including those who serve in the law enforcement community. It is neither reasonable nor just to expect those who routinely enforce the law to submit to indignities which those who violate the law can constitutionally escape.

Even if the present drug crisis abates, these precedents will endure. Today’s decision makes an important constitutional right the latest casualty in the war on drugs.

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Bellacosa, J. Titone, J.

license: Public Domain

text:
    In the Matter of Joseph Cahill et al., Respondents, v Public Service Commission et al., Respondents, and New York Telephone Company et al., Appellants.
    Argued March 29, 1990;
    decided May 10, 1990

      POINTS OF COUNSEL

      John M. Clarke, Gerald M. Oscar, Thomas J. Farrelly, David O. Simon and Laurence H. Tribe, of the Massachusetts Bar, admitted pro hac vice, for New York Telephone Company, appellant.

      Stanley W. Widger, Jr., Jeffrey C. Parnell and Kevin G. Martin for Rochester Gas and Electric Corporation, appellant.

      Richard D. Emery, Mark A. Sirota and Burt Neuborne for Joseph Cahill, respondent.

      Robert Abrams, Attorney-General (Richard W. Golden, John W. Corwin, Mary Hilgeman and Charlie Donaldson of counsel), respondent pro se.

      F. Peter O’Hara and Peter M. Metzger for The Brooklyn Union Gas Company, amicus curiae.

      Peter Garam, Elisabeth S. Harding and Larry Carbone for Consolidated Edison Company of New York, Inc., amicus curiae.

      David F. Smith and Josephine S. Trubek for National Fuel Gas Distribution Corporation and another, amici curiae.

      James J. Sabella and Brenda F. Szydlo for New York City Mission Society, amicus curiae.

      Owen Zuckert, Richard Cherry and Stanley S. Weithorn for United Way of New York City and others, amici curiae.

      Sol Neil Corbin, Marc J. Gottridge and Carolyn Schurr for the New York Public Library, amicus curiae.

      Miriam Sparrow for New York Blood Center, Inc., amicus curiae.

      Alfred M. Hallenbeck for Rochester Institute of Technology, amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

The policy of the New York Public Service Commission (PSC) authorizing utilities to pass along to ratepayers part of the cost of corporate charitable contributions is challenged on First Amendment grounds under the United States Constitution. We agree with the result in the lower courts on the merits declaring the policy unconstitutional. The order of the Appellate Division should thus be affirmed. This court also previously affirmed, at the threshold pleadings level, the determination that the PSC policy constituted State action (Matter of Cahill v Public Serv. Commn., 128 Misc 2d 510, affd 113 AD2d 603, affd 69 NY2d 265, reorg denied 69 NY2d 862, cert denied 484 US 829). That, of course, is the law of the case and sets the stage for the merits review here.

Prior to 1970, the PSC, as the State agency charged with plenary regulatory and rate-fixing powers over all public utilities in New York State (Public Service Law § 66 [12]; § 91 [1]; § 92 [1]; § 97 [1]), did not allow recoupment from ratepayers of corporate sums given as charitable donations. These costs, in the millions of dollars, were absorbed within the particular utility’s shareholder cost columns. In 1970, the PSC changed its policy and allowed reimbursement from customers through the authorized rate structure, and thus transformed these costs into and treated them as utility operating expenses. Appellants New York Telephone (NYTel) and Rochester Gas & Electric (RG&E) took advantage of the PSC’s empowerment and sought retrieval of costs expended as contributions to numerous charities, including politically and religiously active organizations.

Cahill is a customer of appellant NYTel and of another utility which was a former intervenor in this case. His article 78 proceeding against the PSC and the utilities attacks this forced funding, through these publicly regulated corporate conduits, (1) of organizations engaged in activities and causes contrary to his political or personal beliefs; (2) of religious institutions that expound beliefs inconsistent with his own; and (3) of organizations that promote the right to abortion, to which he is opposed on moral and religious grounds. The Attorney-General also brought article 78 proceedings against the PSC and certain utilities seeking the same relief on behalf of all ratepayers. The proceedings were consolidated and are here as of right only by NYTel and RG&E, the PSC having shifted to a mute stance before this court.

Cahill’s First Amendment argument springs from his personal sense of real and perceived compulsion under the PSC policy effecting his contribution to and association with groups which advance beliefs contrary to his own and which are selected unilaterally and unrestrictedly by the utilities. The Attorney-General advances essentially the same argument on behalf of consumers generally.

The First Amendment protects the right to speak and to associate freely, as well as the right not to speak or associate. The Supreme Court, almost 50 years ago, extolled people’s rights under the First Amendment freedom from governmental interference with speech or association activities (Board of Educ. v Barnette, 319 US 624, 633). There, the First Amendment rights of pupils, Jehovah’s Witnesses who refused to salute the flag, were upheld through the inspiring voice of Justice Jackson, whose opinion for the majority of the court stated, in part: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” (Id., at 642.)

Almost 40 years later, the Supreme Court met a man who objected to the New Hampshire motto "Live Free or Die” on his license plate (Wooley v Maynard, 430 US 705). The State argued that the motto served the State’s interest by promoting an appreciation of history and State pride. The court, harkening to Barnette (319 US 624, supra), protected the licensee’s First Amendment freedom from participation in the dissemination of his State’s ideological message on his license plate (see also, Elrod v Burns, 427 US 347; Buckley v Valeo, 424 US 1).

Only a month later, the Supreme Court weighed the validity of a Michigan statute that permitted "agency shop” agreements under which nonunion employees had to pay the union a fee equal to union dues (Abood v Detroit Bd. of Educ., 431 US 209). Observing that the First Amendment is implicated in such circumstances because "[a]n employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative” (id., at 222), the court concluded nonetheless that interference with the employees’ association rights was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” (Id., at 222.) The policies of labor peace and no "free riders” led the court to hold the fee a qualifiedly permissible intrusion on the nonunion employees’ First Amendment freedoms. For the first time, constitutional dispensation was accorded to an unimagined "exception” niche — to use Justice Jackson’s word in Barnette — in the First Amendment pantheon. Even so, Abood narrowly restricted itself to fees used to finance expenditures by the union only for the purposes of collective bargaining, contract administration and grievance adjustment (431 US, supra, at 225-226). The court critically distinguished union expenditures for political or ideological purposes unrelated to collective bargaining, reasoning that compulsory political contributions "work[ ] no less an infringement of [the objecting employees’] constitutional rights” than do prohibitions against such contributions (id., at 234). It then invoked Thomas Jefferson’s ringing alarm that " 'to compel a man [or woman] to furnish contributions of money for the propagation of opinions which he [or she] disbelieves is sinful and tyrannical’ ” (431 US, supra, at 234-235, n 31). To the extent that fees extracted from those who objected to the union’s ideological viewpoint were used for political purposes, they were resoundingly condemned unanimously, with the plurality opinion expressing the rationale that this was violative of the First Amendment unless the activities were "germane to [the union] duties as collective-bargaining representative” (431 US, supra, at 235).

Justice Powell issued the most extensive concurring opinion and agreed with the result more directly by stressing that the extracted payments for objectionable union expenditures could not withstand the traditional highest level of First Amendment scrutiny — paramount State interest. Justice Powell challenged the coerced service fees imposed on nonunion employees as so serious an impingement of First Amendment freedoms that he lamented the plurality’s failure to utter the more exacting level of scrutiny as controlling (id., at 254-255).

This abridged precedential array provides a sufficiently relevant dispositional context in which to examine the two principal arguments advanced by the utilities in this case. They argue that the First Amendment freedom reflected in the pertinent cases is not available because ratepayers will never be personally identified with the ideological positions expressed through the charitable donations and entities selected by the utilities. Alternatively, they argue that even if First Amendment rights are implicated, the intrusion is minimal and should be measured against something less than a compelling or paramount State interest. They claim the "germaneness” proviso of Abood predominates, is satisfied, and controls the outcome in their favor.

We conclude that the critical inquiry starts with whether the extracted payments could reasonably be regarded by the individual ratepayer as an affirmation of or acquiescence in beliefs of the benefited organizations, some of which beliefs happen to be anathema to the objecting ratepayer. The essence of the First Amendment impingement, as we have come to understand its modern nuanced application, is that the ratepayers are entitled to protection against forced financial support for causes and messages personally distasteful to them, because that would render those individuals faithless to their own beliefs. The monetary support here is direct, though small in amount, because it is spread across the entire rate-paying public (Teachers v Hudson, 475 US 292, 305-308). Thus, the first prong of the utilities’ rationalization for its PSC-authorized actions is far too cramped. It is enough that the extracted payments impose on the ratepayers, in some measure actually and in their estimation subjectively, particular and objectionable expressions and causes of a host of organizations.

In Abood (431 US 209, supra), it was unlikely that the public would attribute to the nonunion employees the ideological or political views advanced by the union merely because of the nonunion members’ compelled financial support of the union. Yet, the constitutional canopy covered the employees if they viewed the compelled contribution as an endorsement of the union’s nonessential public causes (id., at 222). The parallel in the instant case is more potent. Here, ratepayers are powerless against governmentally regulated monopolies and have no place else to seek indispensable public utilities services. By that unique circumstance, they are more seriously burdened and disadvantaged than the contributing nonunion members in Abood (see, Matter of Cahill v Public Serv. Commn., 69 NY2d, supra, at 272-273). In assessing the infringement on the ratepayers’ freedoms, we may at least agree that while it may not be "sinful”, it is surely "tyrannical”, and that should be enough, with all the factors present here, to extend the First Amendment canopy (Abood v Detroit Bd. of Educ., 431 US, supra, at 234-235, n 31; see also, Austin v Michigan Chamber of Commerce, 494 US —, 110 S Ct 1391; Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 BC L Rev 995, 1016-1023).

The utilities’ contingent argument that a First Amendment intrusion may be justified, in any event, by something less than a compelling State interest is an artful proposition. Did the Supreme Court in Abood displace the compelling State interest test — the traditional strict scrutiny standard by which First Amendment intrusions are measured — with a "germaneness test”? We do not think it did. But if it did, the utilities urge, an intrusion "germane” to some State interest will be justified and will pass constitutional muster here.

Without question, the Supreme Court plurality in Abood built its rationale first on some identified governmental interest. Only then did Justice Stewart inject the germaneness facet in his differentiated analysis of the permitted intrusion on the nonmembers’ First Amendment freedoms (see also, Ellis v Railway Clerks, 466 US 435, 455-456). In this case, therefore, no one can doubt that there is an obligation to present some sufficient State interest justifying the govern-mentally enforced retrieval of contributions from ratepayers. It must even be germane to the reasonable cost of doing business and to the provision of utility services. Only then can the cost be ultimately chargeable to ratepayers instead of to the corporation itself and its shareholders. The "germaneness” notion is thus inextricably interwoven into the analysis of whether the State has established some government interest and is not a substitute for a State interest component (see, Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-Association, 36 Rutgers L Rev 3 [1983]). That is as far as the Supreme Court majority in Abood found it necessary to go as of that time.

Recently, in Austin v Michigan Chamber of Commerce (494 US —, 110 S Ct 1391, supra), the Supreme Court applied the compelling State interest standard in upholding the Michigan Campaign Finance Act, which prohibits corporations from using corporate treasury funds for independent political expenditures, and required instead that separate, segregated funds be used for such expenditures. The court held the statute was narrowly tailored to further the compelling governmental interest of eliminating distortion caused by corporate spending while permitting spending of segregated funds in a way that accurately reflects contributors’ support for a corporation’s political views (see, 494 US, at —, 110 S Ct, at 1398).

In light of the recent Supreme Court pronouncement in Austin and consistent with our understanding of Abood, we believe appellants are required to demonstrate a compelling State interest — the traditional First Amendment prerequisite. The tendered State interest in this case does not qualify. The germaneness aspect, so heavily leaned on by the utilities, in any event fails to bridge the gap because the nexus between the coerced recoupment of contributions and the provision of the utility services is too tenuous, or at least not proven with necessary definitiveness. We agree and understand that charitable contributions may enhance important quality of life aspects in selected spheres of the affected communities, thus benefiting in many intangible ways the utilities’ employees, customers and boosters. The lineup of amici curiae supporting the position of the utilities in this case are a testament to that desideratum. But the effects of this gossamer civic goodwill on the elementary provision of utility services are at best speculative, and at worst clearly not a sufficient basis upon which to compromise First Amendment freedoms held by so many affected persons.

In sum, the utilities have not fulfilled their burden of justification for imposing on their ratepayers, rather than on their shareholders, the bill for their selected philanthropy. Indeed, the beneficial corporate public relations generated by the largesse made in the name of public utilities essentially advances predominately the private interests of the utility corporations and their shareholders — especially their financial interests — and are too peripheral to the service interests of the ratepayers. As we have stated previously in another context, "nothing in the Constitution requires that the shareholders get a free ride on the backs of the ratepayers” (Matter of Consolidated Edison Co. v Public Serv. Commn., 66 NY2d 369, 372).

Finally, the utilities protest that ratepayers’ objections to compelled recoupment of charitable contributions is no different from objections raised by taxpayers obliged to financially support ideologically offensive programs directly effected by the government. As troublesome and controversial as governmental expenditures may be in their fiscal and policy implications, they are very different from what we are confronted with in this case. To be sure, the government may collect and spread benefits — even ones highly offensive to some citizens— through the entire tax-paying society. But this cannot form a constitutional predicate for the government to go the next gigantic step and delegate this unique power to publicly regulated enterprises, especially corporate utility monopolies, and to allow them to extract across-the-board ratepayer subsidies.

The doctrinal integrity of First Amendment jurisprudence must be protected from such governmental channelling or blockading of public expression through preferred agents, who then, as in this case, exert monolithic or majoritarian power through a mini-taxing authorization certainly against the interests and beliefs of some ratepayers. This would convert the free marketplace of ideas to the consumer-subsidized preserve of corporate utility ideas.

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

Titone, J.

(concurring). I continue to believe, as I stated in Matter of Cahill v Public Serv. Commn. (69 NY2d 265, 274-280 [Titone, J., dissenting], cert denied 484 US 829), that the challenged practice at issue here, i.e., regulatory setting of utility rates, is nothing more than governmental acquiescence in private economic decisionmaking not rising to the level of State action. Nonetheless, since the conclusion that State action is involved is now the "law of the case,” I am bound by that conclusion and must analyze the First Amendment issue presented accordingly. Even with that element settled, however, I find myself unable to agree with my colleagues’ approach to the complex and subtle problems presented by this ratepayer’s arguments. While I concur in their ultimate conclusion that the challenged practice, if it involves "State action,” is violative of the ratepayers’ constitutional rights, the route I have traveled to reach that conclusion differs in several important respects from that which the majority has taken. Accordingly, I write separately.

First, I find the majority’s heavy reliance on Abood v Detroit Bd. of Educ. (431 US 209) to be extremely troubling. The threshold question in Abood, which the court discussed at the outset of its opinion, was whether the government employees in that case could be compelled to pay union dues (or the equivalent in service fees) at all in light of the apparent infringement of their right not to associate with causes abhorrent to their beliefs. The court acknowledged that a significant impairment of First Amendment rights was involved, since there may be some employees who are opposed to the very concept of unions and collective bargaining. However, the impairment arising from the forced contributions to union coffers was justified by an important governmental interest in promoting and preserving labor peace. It was in this context that the Abood court went on to hold that the notion of forced contributions to the union is constitutionally valid only to the extent that the money is used for activities "germane to” collective bargaining, the union function most closely related to the identified State interest in labor peace.

The threshold constitutional problem that existed in Abood is not present in this case. In contrast to the obligatory union dues/service fees challenged in Abood, it does not violate any associational or expressional rights to compel an individual to pay for the services he has obtained from a utility company. This distinguishing feature is critical. Although reasonable minds may differ on this point, Abood may most readily be analyzed as falling within the well-established principle that even where laws impairing First Amendment rights are justified by "compelling” governmental interests, they must be narrowly tailored and may not go beyond that which is necessary to accomplish the identified governmental purpose that justifies the impairment. Viewed in that light, Abood would not be controlling here, since there is no initial impairment of the ratepayers’ First Amendment rights that is analogous to the clear associational and expressional impairment involved in forcing public employees to contribute to union activities.

Furthermore, even if Abood is not be viewed as a "narrow tailoring” case, the absence of the threshold constitutional problem discussed above is significant. In Abood, because of the very nature of unions as representative agencies, the forced payment of union dues/service fees implicated the employees associational rights. Like it or not, the employees were associated with the union and the union’s activities by virtue of their involuntary contributions and of the union’s reciprocal duty to represent them. Because of this initial implied association, the further affront of requiring dissidents to pay for the union’s "nongermane” political activities — and to thereby associate themselves even further with offensive positions — was deemed violative of the employees’ First Amendment expressional and associational rights. Here, in contrast, there is, once again, no implicit association of the ratepayer with the utility company by virtue of the former’s payment of his utility bills. Therefore, the problem of compelled association that was an important consideration in Abood is not present here (see also, PruneYard Shopping Center v Robins, 447 US 74, 87).

Having concluded that Abood is not controlling, I am left to consider whether, in the absence of a rationale based directly on Abood, there is a constitutional prohibition against forcing an individual to contribute indirectly to causes with which he disagrees. On this issue, the observation that such a compulsion is " 'sinful and tyrannical’ ” (431 US, at 234-235, n 31, supra; see, majority opn, at 112) is simply too facile. Our entire system of government by majority rule is built on the notion that individual citizens may be compelled to pay for, and even serve in wars fought for, causes and ideas that offend their own personal principles (see, e.g., United States v Seeger, 380 US 163; see also, Gillette v United States, 401 US 437). As one commentator has noted, "incursions on conscience through forced 'support’ of distasteful causes is an inevitable concomitant of living in an organized society” and, accordingly, "pure peace of mind cannot be accorded high constitutional status” in a nonanarchic state (Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-Association, 36 Rutgers L Rev 3, 25, 26).

While the First Amendment may, as a general matter, prohibit the State from restricting citizens’ free expression of ideas, and from compelling them to express or even associate with ideas offensive to them (see, Wooley v Maynard, 430 US 705), there can be no doubt that the government may, through general taxes or special levies, force citizens to pay for projects and causes that are abhorrent to their beliefs. Thus, the real question here is whether there is anything in the Constitution that prohibits the government from doing indirectly what it unquestionably may do directly, i.e., effect a transfer of wealth from individuals to arguably socially useful projects, by permitting private business entities to "tax” their customers as a means of financing their own charitable contributions.

As to this issue, it does not suffice to attack the Public Service Commission’s policy on the ground that it represents "governmental channelling * * * of public expression through preferred agents” or that it "would convert the free marketplace of ideas to the consumer-subsidized preserve of corporate utility ideas.” (Majority opn, at 114.) Once again, the majority’s hyperbole proves too much. The government establishes "preferred agents” — and delegates to corporations (and other private citizens) the power to spend public money on the causes of their choice — whenever it allows a tax deduction or credit for private "charitable contributions” (Regan v Taxation with Representation, 461 US 540, 544).

Hence, there can be no serious constitutional objection to a governmental policy that delegates to a private concern the power to select the causes that will receive subsidies derived, directly or indirectly, from citizens’ pockets, provided, of course, that the policy is a content-neutral one (see, id., at 548). The constitutional objection, if any, must thus be based on the other prong of the equation — the State’s delegation of its power to impose a tax, as distinguished from its power to spend the taxed funds. It is this aspect of the PSC’s policy which I find to be most troublesome.

The analogy between the typically governmental function of taxation and the utilities’ government-approved "pass-along” policy exists because the latter entails the imposition on ratepayers of a levy that is then used to support activities aimed at advancing the interests of the community at large, as distinguished from the interests of the utilities’ shareholders and employees. In a democratic society, such a levy is permissible, if implemented directly by the government, because the government is ultimately accountable to the taxed citizens through the established political mechanisms for the expression of the majority’s will. These mechanisms are circumvented, however, when the decisions as to whether and how much to "tax” are delegated to a private corporation, which is not accountable through any of these mechanisms.

Viewed in this light, the problem presented in this case may more readily be categorized as one involving the "no taxation without representation” principle than as one involving an impairment of First Amendment associational or expressional rights. Whatever its proper characterization, however, it seems clear that, assuming the existence of State action, a problem of constitutional magnitude exists. Accordingly, I concur in the majority’s decision to affirm the order of the court below.

Before closing, I must stress that my conclusion herein does not represent any implicit skepticism about the value to the community of the charitable activities that the PSC policy was designed to promote — or about the social utility of the policy itself. The past decade has ended with a widespread recognition of the limits of government’s ability to tax its citizens to pay for necessary and important social programs. This recognition has, in turn, brought about an increased sensitivity to the pressing need for volunteerism in general and, more specifically, governmental policies that encourage businesses with large concentrations of capital to donate to social and charitable projects. While the PSC’s efforts to promote volunteerism have, unfortunately, been proven to be constitutionally problematic in this specific context and, for that reason, cannot be upheld, I would hope that the court’s holding here will not be perceived as a rejection of the charitable intentions, as well as the goals, underlying the challenged actions of both the PSC and the utility companies it regulates.

Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Bellacosa; Judge Titone concurs in a separate opinion; Judge Hancock, Jr., taking no part.

Order affirmed, with costs.


author: Titone, J. Simons, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Asher Cain, Appellant.
    Argued March 29,1990;
    decided May 10, 1990

      POINTS OF COUNSEL

      Andrea Hirsch and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Emil Bricker of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

In this case appellant challenges the propriety of a postverdict robing room proceeding during which supplemental legal instructions were given to a single juror. We conclude that under the circumstances presented, the trial had not ended as a matter of law when the jury rendered a verdict, and that as a result the robing room proceeding must now be deemed part of appellant’s trial. Accordingly, appellant’s absence from that proceeding requires reversal regardless of whether any actual prejudice or harm is shown (see, People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431, 436-437; CPL 310.30; cf. People v Darby, 75 NY2d 449).

Appellant Asher Cain and codefendants Dawson Sharpe and David Jones were charged with robbery in the first degree, kidnapping in the second degree, burglary in the first degree, and six counts of unlawful imprisonment in the first degree. The charges arose out of an incident in which the complainant Cecil Kerrutt, a Brooklyn restaurant owner, was accosted outside of his restaurant by three armed men who demanded all of Kerrutt’s money. Kerrutt said that he could give them the day’s receipts he had in the restaurant, but one of the men, allegedly Dawson Sharpe, replied that they wanted $50,000. When Kerrutt told them that he did not have that amount of money, Sharpe allegedly responded, "We know you have it. You have it at home.” Kerrutt was then driven to his home, where the armed intruders forcibly detained six family members while ransacking the house looking for jewelry and the desired $50,000 in cash. After expressing dissatisfaction with the small amount of money they found in Kerrutt’s home, the robbers decided to return to Kerrutt’s restaurant to see if the $50,000 could be found there. During this trip, codefendant Sharpe allegedly remained in Kerrutt’s home holding his family hostage. Kerrutt, who had been taken back to the restaurant by appellant and Jones, escaped while inside the restaurant.

All of the charges against each defendant were submitted to the jury. After the jury announced that it had reached a verdict, the foreperson stated that the jury had found Sharpe and appellant guilty of all counts and had acquitted Jones on all counts. Counsel for Sharpe then asked that the jury be polled. During the poll, when asked by the court clerk "Is that your verdict?”, juror number seven equivocated, inquiring whether he could talk to the Trial Judge in private. After receiving an affirmative answer, the juror indicated that his verdict as to Sharpe was guilty on all counts. The polling then continued without further event. Upon appellant’s counsel’s request, the jurors were polled on their verdict against appellant, and each juror, including number seven, responded affirmatively to the clerk’s question, "Is that your verdict?”

After the jury poll had been completed, the court specifically stated: "Before I accept your verdict as recorded, I want you to return to the jury deliberating room. Juror Number Seven apparently has some questions to ask, and I will ask [him] to put those questions on a piece of paper and put it in an envelope and send it down to me, and then I will decide what I’m going to do, whether or not I’m going to accept the verdict depending on what the questions are and what the problems may or may not be, all right.” (Emphasis supplied.) When juror number seven’s note proved unintelligible, the court, the prosecutor and the attorneys representing Sharpe and appellant agreed that the juror should be brought to the Judge’s robing room for questioning. Although the attorneys were present at this proceeding, the defendants, including appellant, were not.

As the robing room colloquy between the Judge and the juror began to unfold, it became apparent that the juror was unclear on the law concerning the theory of acting in concert. In an effort to dispel the juror’s confusion, the Judge repeated his initial instructions and an example that he had originally given during the voir dire. The robing room discussion also touched upon some of the juror’s specific conclusions concerning the defendants’ specific locations while they were in Kerrutt’s home, and a brief reference to the substance of the jury’s deliberations which was cut short when the Judge instructed the juror to avoid mentioning that subject. The colloquy ended when juror number seven stated that the court’s explanation of mental culpability had clarified his problem, and that his verdict as to both appellant and Sharpe was guilty. Appellant’s counsel interposed objection to the colloquy on the sole ground that the court had not afforded him an opportunity to question the juror.

Thereafter, the Judge returned the entire jury to the courtroom, and in the presence of all parties, including appellant, stated, "[now] that we’ve clarified Juror Number Seven’s question * * * / will now accept your verdict as recorded. ” (Emphasis supplied.) The court then discharged the jury.

On his appeal to the Appellate Division, appellant contended that his statutory and constitutional rights to a unanimous verdict and to be present during trial had been violated by the robing room inquiry. In addition, he argued that his kidnapping conviction should have been deemed, as a matter of law, to have merged with his robbery conviction. The Appellate Division affirmed the judgment of conviction, and a Judge of this court granted leave to appeal. We now reverse.

In People v Ciaccio (47 NY2d 431, supra) we recognized that a defendant has a right to be present, with counsel, at all material stages of a trial (id., at 436; see, People v Mehmedi, 69 NY2d 759, 760-761, supra; People v Mullen, 44 NY2d 1; People ex rel. Bartlam v Murphy, 9 NY2d 550, 553; Maurer v People, 43 NY 1; CPL 310.30; see also, Snyder v Massachusetts, 291 US 97, 105-106), including "all proceedings dealing with the court’s charge, admonishments and instructions to the jury, where the court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts” (People v Ciaccio, supra, at 436). Specifically addressing supplemental instructions, the court noted that since they "com[e] after the jury has already once retired, they may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves.” (Id.) Consequently, the court concluded that the presence of the defendant and his counsel during supplemental instructions is constitutionally, as well as statutorily, required (id., at 436-437; see, US Const 6th Amend; NY Const, art I, § 6; CPL 310.30). Finally, in People v Mehmedi (supra), we held that the absence of the accused during supplemental instructions presents an error of law mandating reversal even in the absence of objection (id., at 760; People v Ciaccio, supra, at 436-437), and that an inquiry into prejudice is inappropriate (People v Mehmedi, supra, at 760).

Here, it is clear that the robing room colloquy, which included a discussion of the applicable legal principles, constituted, at least in part, the giving of "further instruction[s]” within the meaning of CPL 310.30. Thus, appellant had an absolute right to be present, and the failure to accord him that right mandates reversal unless, as the People contend, appellant’s trial had already ended by operation of law when the jury’s verdict on the charges pertaining to him was announced and confirmed through a formal poll.

Under the facts of this case, we conclude that the trial had not ended. Although the foreperson announced that appellant had been found guilty and the subsequent jury poll revealed no apparent discrepancy, the trial court’s actions, including its decisions to defer "acceptance” of the entire verdict and to permit appellant’s counsel to participate in the postverdict colloquy, make clear that the court itself did not consider appellant’s trial to be at an end. Accordingly, appellant had a constitutional and statutory right to be personally present at this colloquy in which legal instructions were given, and the fact that juror number seven’s reservations may or may not have been limited to codefendant Sharpe is irrelevant. Under our case law, appellant is entitled to reversal without regard to whether any actual prejudice flowed from his absence.

Finally, we agree with appellant’s additional contention that the trial court erred in denying his motion to dismiss the kidnapping count on the ground that it had merged with the robbery count. "The merger doctrine is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not be fairly attributed to them.” (People v Cassidy, 40 NY2d 763, 767; see, People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159, cert denied 381 US 938.) Here, the asportation and restraint of Kerrutt from the restaurant to his home and back was incidental to and inseparable from the defendant’s over-all scheme of taking $50,000 from Kerrutt (see, People v Smith, 47 NY2d 83, 87). Indeed, the return trip to the restaurant was necessary only because the $50,000 was not found at Kerrutt’s home. In this regard, we reject the People’s contention that the robbery of Kerrutt was completed in the restaurant parking lot, and that the trip to Kerrutt’s home and back was a "change[ ] in purpose and direction” (People v Miles, 23 NY2d 527, 539), sufficient to constitute the independent crime of kidnapping and remove this case from the Levy-Lombardi rule (see, e.g., People v Riley, 70 NY2d 523). Hence, the doctrine of merger precludes appellant’s separate conviction of kidnapping in the second degree (Penal Law § 135.20), and requires that the kidnapping charge of the indictment be dismissed (see, People v Lombardi, supra, at 273).

For the foregoing reasons, the kidnapping charge should be dismissed from the indictment, and appellant’s conviction must be reversed, and a new trial ordered on the remaining counts.

Simons, J.

(dissenting in part). I agree that there must be a reversal because defendant was absent during a material part of the trial. I disagree, however, for the reasons stated by Judge Bellacosa in dissent, that the kidnapping count of the indictment should be dismissed. I would direct a new trial on all counts.

Bellacosa, J.

(dissenting). I respectfully dissent and vote to affirm.

The criminal enterprises of a trio of armed thieves revolved around a brazen robbery, burglary, kidnapping and unlawful imprisonment which lasted almost two hours. What is referred to as an "incident” (majority opn, at 121) rotated between the restaurant where the primary victim was robbed of his day’s receipts; his home, to which he was abducted by the thieves who wanted an additional $50,000 (where six other members of the primary victim’s family were held hostage while the house was ransacked); and then back at the restaurant with the primary victim while one of the thieves stayed at the house with his family. No new principles of law emerge from this case; rather, two well-established rules are simply badly applied, in my view.

The order of the Appellate Division unanimously affirming the judgment of conviction rendered after separate jury verdicts on a jointly conducted trial against the three perpetrators was correct, certainly as to the only appellant before us. This defendant, Cain, should not be able to piggyback on a possible gaffe committed by one juror concerning a codefendant’s verdict. The trial court made a reasonable effort to contain the gaffe, yet its work is found to constitute reversible error. Also, the second well-settled rule involving the merger doctrine between robbery and kidnapping does not pertain to the facts of this case, and the conclusory rejection of the jury’s resolution of the facts, sustained by two courts below, surely smacks of fact finding by this court in this instance (majority opn, at 125).

First as to the merger doctrine, we know it applies only when the conduct underlying the abduction is "incidental” to and "inseparable” from another crime (People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159, cert denied 381 US 938) and cannot be viewed as "independent” (People v Cassidy, 40 NY2d 763, 767). Therefore, we should not apply this rule as a matter of law at this level "to merge true kidnappings into other crimes * * * of lesser or equal or greater gravity” (People v Smith, 47 NY2d 83, 87) when a reasonable view of the evidence supports the opposite conclusion. Here, the original plan of the gang of thieves was to rob the businessman-victim at his Brooklyn place of business. They took the day’s receipts and eventually his jewelry. Still unsatisfied, they shifted gears and added a significant new and separable dimension to their criminal enterprises. They proceeded with the already fleeced victim in their car to his home in Queens, and then ransacked the house while holding his entire family of six people captive in the house. Next, appellant Cain and his codefendant Jones again "accompanied” the restaurateur back to the Brooklyn business location where the original robbery took place, searching for and demanding an extra $50,000, while the third thief, Sharpe, stayed with the family back at the house.

Under these circumstances, Cain should not be able to escape his independent criminal responsibility for the kidnapping charge. The described scenario proved beyond a reasonable doubt that the robbery and kidnapping were factually separable and clearly constituted a "change[ ] in purpose and direction” from the original robbery sufficient to remove the kidnapping from the Levy-Lombardi doctrine of merger (People v Miles, 23 NY2d 527, 539; see also, People v Riley, 70 NY2d 523, 532).

The other legal issue, on which a new trial is ordered, stems from juror No. 7 blurting out a befuddled post-announcement-of-verdict query on the polling of the verdict only as to codefendant Sharpe. The query and the events which followed in the trial court’s attempt to reasonably deal with the situation had absolutely nothing to do with the integrity of the verdict rendered against Cain. Nevertheless, characterizing the Trial Judge’s struggle to manage the situation as the rendition of unauthorized "supplemental jury instructions” as to Cain, the majority orders a new trial for him. This third-party benefit to Cain is unwarranted and proves the danger of developing per se procedural rules which are then applied and extended unreasonably and preciously.

The multiple counts of robbery, burglary, kidnapping and unlawful imprisonment should be sustained because there is no error, and certainly no prejudicially reversible error, which inure to the detriment or benefit of this defendant. His trial and his guilty verdict were free of any taint and his conviction ought to stand undisturbed.

Chief Judge Wachtler and Judges Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Judge Simons dissents in part and votes to reverse and order a new trial on all counts in a memorandum; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, the kidnapping charge dismissed, and a new trial ordered on the remaining counts of the indictment.

      . The robing room colloquy was also violative of CPL 310.30 for the additional reason that the statute does not contemplate the giving of supplemental legal instructions to a single juror in the absence of the remaining jurors (see also, CPL 260.30, 270.45).

      . Since we are reversing the conviction and ordering a new trial, we need not decide whether the trial court’s polling procedure was proper (see, People v Pickett, 61 NY2d 773). In any event, this claim is not preserved for our review (see, People v Williams, 70 NY2d 946).


author: Per Curiam. Titone, J.

text:
    The People of the State of New York, Respondent, v Paul Wicks, Appellant.
    Argued February 15,1990;
    decided April 3, 1990

      POINTS OF COUNSEL

      Michael J. Hutter for appellant.

      Roger H Mallery, District Attorney, for respondent.
   OPINION OF THE COURT

Per Curiam.

The question we confront today is that expressly left open in People v Hodge (53 NY2d 313): whether harmless error analysis applies to the failure to provide counsel to a criminal defendant at a preliminary hearing pursuant to CPL 180.10. While harmless error analysis is inapplicable to alleged errors depriving a defendant of effective assistance of counsel at his trial or generally during the course of his prosecution, we conclude that in the limited circumstances of a preliminary hearing intended only to determine whether a defendant may be held over for action by the Grand Jury, harmless error analysis is applicable. We further conclude that in the circumstances of this case, the error was harmless beyond a reasonable doubt. Accordingly, we affirm the order of the Appellate Division upholding defendant’s conviction.

I

The charges against defendant arose out of his alleged attacks upon several women in the dormitories at the State University of New York Technical Institute at Cobleskill (SUNY) in Schoharie County. Although considerably older than the average student, defendant had matriculated the university and was well known by some members of the student body. On October 3, 1986, between 5:35 a.m. and 6:20 a.m., defendant unlawfully entered four dormitory rooms occupied by female students, touched them, fondled them and, in one instance, attempted a rape. Defendant was identified later that morning by one of the victims, who picked out his photograph from a series of student photographs at the office of campus security. He was arrested that afternoon and arraigned in the local criminal court.

On October 9, 1986, a preliminary hearing was held to determine whether defendant could be held for action by the Grand Jury (CPL 180.10). Although defendant requested counsel at his arraignment, no attorney had been appointed by the day of the hearing. Nevertheless, the hearing court decided to proceed. At the hearing one of the victims and the school’s director of public safety testified for the prosecution. The victim testified that on the morning of October 3, 1986, she awoke to find a man lying naked in the bed beside her while fondling her. She further testified that she ran out of the room, but, concérned about her roommate, she returned and told the man to leave. He complied and she then reported the incident to a resident advisor, the dorm director and the university office of public safety. She viewed five photographs at the office of public safety and identified the defendant. William Mercier, the director of public safety, testified as to the five photographs the victim viewed and that she chose the defendant’s photograph. Defendant did not cross-examine either witness, object to the prosecutor’s questions or call any witnesses on his own behalf. The court ruled that he was to be held for action by the Grand Jury.

Defendant was tried and convicted on all the counts in the indictment returned by the Grand Jury — first degree attempted rape, second degree burglary and third degree sexual abuse. The public safety director, but not the victim, testified at the Wade hearing although both testified at the trial. The victim’s trial testimony was completely consistent with her testimony at the preliminary hearing.

On appeal to the Appellate Division, defendant argued, for the first time, that the hearing court erred in conducting the preliminary hearing in the absence of his attorney. That court concluded that the issue was unpreserved, but held that, in any event, the error was harmless beyond a reasonable doubt. Defendant appeals by leave of a Judge of this court, and we now affirm.

II

Unquestionably, the denial of counsel to defendant at his preindictment preliminary hearing was error of constitutional dimension (Coleman v Alabama, 399 US 1) and a statutory violation as well (CPL 180.10 [3]). Contrary to the conclusion of the Appellate Division, the error is preserved for our review. The record reveals that the defendant requested counsel at his arraignment and the statements of the Village Justice at the time of the CPL 180.10 hearing establish that the Justice was fully aware of the error in proceeding with the hearing in the absence of counsel for the defendant. The question presented for our review then, is whether such an error is per se reversible or whether it may be subject to harmless error analysis.

Defendant argues that our decision in People v Hodge (53 NY2d 313, supra) mandates a new trial in every instance where a defendant is denied his right to counsel at a CPL 180.10 preliminary hearing. This argument, however, misreads Hodge, which expressly left open the question of whether harmless error analysis was applicable to the denial of effective assistance of counsel at such a preliminary hearing (id., at 320). In Hodge, we distinguished a deprivation of counsel at a CPL 180.10 hearing from a denial of effective assistance of counsel at trial, reasoning that the latter right is " 'too fundamental’ ” to permit speculations as to the presence or absence of prejudice (id., quoting Glasser v United States, 315 US 60, 76). This is because unlike other trial errors, a denial of effective assistance of counsel at trial invalidates the trial itself (People v Felder, 47 NY2d 287, 296). Similarly, we have held that denial of a defendant’s access to his attorney for a period of 30 days after his arraignment denies the defendant his fundamental right to a fair trial and therefore is not subject to harmless error analysis (People v Hilliard, 73 NY2d 584).

The denial of counsel at a preindictment preliminary hearing, however, does not necessarily invalidate the trial. Pursuant to CPL 180.10 (1), the purpose of the hearing is to determine whether or not the defendant may be bound over for action by the Grand Jury on the charges in the felony complaint. If a defendant prevails at the hearing, he must be released and the felony complaint dismissed, but the Grand Jury is nevertheless free to indict upon its independent determination that there is legally sufficient evidence that crimes have been committed and reasonable cause to believe that the defendant committed the crimes charged (CPL 190.65 [1]; People ex rel. Hirschberg v Close, 1 NY2d 258, 261). The trial therefore, is unaffected by the outcome of the hearing. While we have recognized that, as a practical consequence of a CPL 180.10 hearing, defense counsel may be afforded some discovery benefits (People v Hodge, 53 NY2d, at 318), any demonstrated prejudice in this regard would lead to a determination that the error was not harmless; it does not mandate the conclusion that every deprivation of counsel at such a hearing invalidates the subsequent trial and therefore cannot be harmless. Indeed, those same discovery benefits were noted by the Supreme Court in Coleman v Alabama and the court determined nevertheless that in an appropriate case, such a deprivation of counsel could be harmless error (399 US, at 11, supra). We decline to adopt a contrary rule as a matter of State law and conclude that in this limited circumstance, harmless error analysis is applicable.

We turn, then, to the question of whether the error in this case is harmless. Since the denial of counsel at a preliminary hearing violates the Constitution, the standard is whether the error is harmless beyond a reasonable doubt because there is no reasonable possibility that the error might have contributed to defendant’s conviction (Chapman v California, 386 US 18, 23; People v Crimmins, 36 NY2d 230, 237; see also Coleman v Alabama, 399 US, at 11, supra).

Defendant does not argue, nor can he, that the outcome of the hearing — a determination that he was to be held for action by the Grand Jury — in any way affected the trial. Nor does he argue that the absence of his attorney at the hearing deprived him of any discovery benefit such as those implicated in People v Hodge (supra). Rather, he argues that because his attorney was not present to cross-examine the two witnesses at the hearing, he was not able to "pin down” their testimony for the purposes of impeachment later at the trial, and in the case of Mercier, at the Wade hearing as well. Mercier’s testimony at the Wade hearing, however, fully explored the identification issue and at that time, defense counsel fully cross-examined Mercier on the subject. Thus, any inconsistencies in his testimony were revealed at the Wade hearing, and defense counsel was able to use that testimony for impeachment purposes at the trial. In fact, no significant inconsistencies were revealed and defendant’s argument of the possibility of an inconsistency sufficient to negate the verdict is sheer speculation.

Similarly, the contention that a devastating inconsistency in the victim’s testimony might have been revealed at the hearing, used to impeach her testimony at the trial, and changed its outcome, is wholly speculative. Although the victim’s trial testimony as to the crime was more detailed than her hearing testimony, the accounts were completely consistent. The trial testimony established that on the morning of October 3, 1986, defendant entered the dormitory rooms of seven female students and subjected them to various forms of sexual contact without their consent. The victim whose testimony is at issue here established that defendant entered her room without consent, fondled her and attempted to rape her before she could push him away. Defendant’s pen and underwear were retrieved from the victim’s bed and her testimony was corroborated by the testimony of her roommate. In light of this overwhelming evidence of defendant’s guilt, there is no reasonable possibility that the absence of defense counsel at the preindictment preliminary hearing contributed to defendant’s conviction.

Finally, the suggestion that reversal is required because had he had the advice of counsel, defendant might not have appeared at the preliminary hearing to be identified is without merit. The hearing identification was not admitted at the trial and thus did not contribute to defendant’s conviction.

We conclude that the error was harmless beyond a reasonable doubt and accordingly the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). As a matter of State law, the ahsence of an attorney at a preliminary hearing is a fundamental right that should not be subject to harmless error analysis. Our prior cases, most notably People v Hodge (53 NY2d 313), all but compel that conclusion. Furthermore, the difficulty of identifying specific prejudice in the form of what might have occurred if counsel had been furnished renders the use of harmless error analysis in this context fundamentally unsound. Accordingly, I must respectfully dissent.

The right of a criminal defendant to interpose an attorney between himself and the awesome power of the sovereign has been a cherished and protected principle in our State (see, e.g., People v Cunningham, 49 NY2d 203, 207-208; People v Settles, 46 NY2d 154, 160-161; People v Hobson, 39 NY2d 479; People ex rel. Burgess v Risley, 66 How Prac 67). Consequently, this court has "exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceeding against him” (People v Cunningham, supra, at 207; see, People v Blake, 35 NY2d 331; People v Di Biasi, 7 NY2d 544) beginning with the commencement of formal adversary proceedings (see, People v Settles, supra; People v Di Biasi, supra), through an indictment (see, People v Waterman, 9 NY2d 561), an arraignment (People v Meyer, 11 NY2d 162), or, as in this case, the filing of a felony complaint (see, People v Samuels, 49 NY2d 218). The primary reason for affording a defendant counsel at these points in the criminal proceedings is that "[t]he initiation of judicial criminal proceedings is far from a mere formalism. * * * For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” (Kirby v Illinois, 406 US 682, 689; see, United States v Wade, 388 US 218, 227.) Accordingly, we have recognized that providing assistance of counsel is necessary not only to protect the rights of the defendant "but for the protection and well-being of society as well.” (People v Settles, supra, at 161.)

The central importance of counsel at preliminary hearings was recognized in Coleman v Alabama (399 US 1). The Supreme Court in that case noted that "the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.” (Id., at 9.)

In People v Hodge (53 NY2d 313, supra), this court addressed the absence of defense counsel from the preliminary hearing. In reversing the defendant’s conviction, the court held that "the test [for reversal] must be not what the hearing did not produce, but what it might have produced if the defendant’s right to counsel had not been ignored [citations omitted]. So measured, the result of such inquiry would have to be pure speculation.” (Id., at 321.) This observation was consistent with the rationale in People v Felder (47 NY2d 287) where the court refused to apply harmless error analysis when a criminal defendant had been represented at trial by an unlicensed laymen masquerading as an attorney. In Felder, the court noted that such analysis was especially inapt because "[tjhere are some errors which operate 'to deny [an] individual defendant his fundamental right to a fair trial [in which event], the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction.’ ” (Id., at 295, quoting People v Crimmins, 36 NY2d 230, 238.) Recently, in People v Hilliard (73 NY2d 584), the court, once again, refused to apply harmless error analysis when a defendant had been deprived of his right to counsel due to a Judge’s contempt order which barred defendant’s contact with his attorney for a period of 30 days following his arraignment. There, as in Felder, we refused to speculate about what might have occurred during the 30-day "no contact” period to determine the degree of prejudice occasioned by the error. The same result should obtain here, where the potential for prejudice was obviously much greater, since, in this case, defendant lacked counsel during a formal postcritical stage proceeding rather than during a postcritical stage period during which no formal judicial proceedings occurred.

As justification for its departure from our prior cases, the majority distinguishes between deprivations of counsel at preliminary hearings from such deprivations at trial, relying on the suggestion in Hodge that the former’s amenity to harmless error analysis remained an open question after that decision (majority opn, at 132; see, People v Hodge, supra, at 320). The Hodge majority, however, specifically noted that "the distinction between denial of effective assistance of counsel at trial and, as here, its denial at a preliminary stage of a case is of no consequence. ” (Id. [emphasis supplied].) Further, the majority’s conclusion that the denial of counsel at a preliminary hearing does not "necessarily invalidate the trial” because even if defendant prevails at the hearing "the Grand Jury is nevertheless free to indict” (majority opn, at 133) is flatly contrary to what was said in Hodge and Coleman (supra) (see, People v Hodge, supra, at 319 ["we must reject, as did the Supreme Court in Coleman (399 US, at pp 8-9, supra), the People’s suggestion that, because the Grand Jury subsequently indicted the defendant, any infirmities that occurred at the flawed hearing may be excused.”]). This sudden reversal of position is inexplicable (see, People v Hobson, 39 NY2d 479, 488-491, supra).

As was recognized in Hodge, the preliminary hearing has "many functions besides the obvious formal ones, such as reduction of excessive charges, prompt arrangement for release where appropriate and, above all, early screening of unjustifiable and unprovable charges against the innocent.” (People v Hodge, supra, at 318.) Indeed, the primary purpose of the preliminary hearing is to safeguard a defendant charged with a crime against being improperly committed to jail pending action of the Grand Jury on the charges against him. Further, as even the majority has observed, the preliminary hearing provides defense counsel with a rare opportunity for discovery since the hearing serves "as a virtual minitrial of the prima facie case” (id.) which enables counsel to "gain knowledge and insight that will be of invaluable assistance in the preparation and presentation of the client’s defense.” (Id., at 319.) Moreover, defense counsel is given the opportunity to cross-examine the People’s witnesses in the presence of the accused, subpoena witnesses to the stand whom the People have not elected to summon, and, as a tactical maneuver to elect to not have the defendant appear (id., at 319-320; see also, CPL 180.60).

As in Felder, Hodge, and Hilliard, harmless error analysis is inappropriate primarily because it is difficult, if not impossible, to assess the possible effect on or prejudice to the defense resulting from a deprivation of counsel. In fact, it is almost impossible to demonstrate many of the forms of prejudice that might occur because any such argument would have to be based solely upon speculation. Here, for instance, since the primary issue was defendant’s identity, defense counsel might have chosen not to have defendant appear at the hearing. This decision, in turn, might have undermined the witness’s ability to identify defendant in court. My point is not that this potential for prejudice is alone basis for reversal. Rather, my point is that application of our harmless error rules in this context is problematic because it is impossible to second-guess what an attorney might have done had he been present at the hearing, much less to foresee what the results of his actions might have been (see, e.g., People v Jones, 70 NY2d 547, 552 [violation of Rosario rules]). Finally, the denial of right to counsel, even at a preliminary hearing, creates an appearance of unfairness which severely taints the entire judicial proceeding, and brings into question the fairness of the treatment afforded the defendant. Viewed in this manner, the error casts a shadow over the integrity of the fact-finding process and the entire proceeding in such a way that harmless error is not sufficient to measure the societal loss (see also, People v Mehmedi, 69 NY2d 759 [defendant absent from court when inquiry from jury received and answer framed]; People v Jones, 47 NY2d 409, 416-417 [right to a public trial]; People v Anderson, 16 NY2d 282 [right of defendant to be present at trial]; People v Savvides, 1 NY2d 554, 556 [prosecutor aware that principle witness testified falsely]).

For all of these reasons, I conclude that only the application of a bright line rule will ensure that a defendant’s right to counsel at a preliminary hearing is respected and enforced by our courts. In the absence of such a rule I fear that the right to counsel at a preliminary hearing could well be eviscerated through application of the harmless error doctrine, since it is only in rare instances that the defendant will be able to point to some concrete form of prejudice. Such a per se rule is necessary both to deter violations of the right to counsel at preliminary hearings and to promote the appearance, as well as the reality, of justice and fairness, goals which should be this court’s utmost concern.

For the foregoing reasons, I would reverse the order of the Appellate Division, and order a new trial (see, People v Hodge, supra, at 321).

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

Order affirmed.