author:
Bellacosa, J.
      Titone, J.

text:
    The People of the State of New York, Respondent, v Anthony Gordon, Appellant.
    Argued September 7,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Barbara Zolot and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Stanley R. Kaplan and
      Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

This appeal from an Appellate Division order, affirming a conviction of criminal sale and possession of drugs, turns on the admissibility of a station house showup identification by an undercover police officer. The Court is unanimous that the undercover officer’s December 7, 1984 showup identification of defendant as a participant in a drug sale on November 27, 1984 is irredeemably suggestive and must be suppressed. It is significantly different from the confirmatory type of showup identification by a trained undercover police officer which was circumscribed but allowed in People v Wharton (74 NY2d 921). We therefore reverse, vacate the judgment of conviction, and remit for further proceedings on the indictments. In that connection, if the prosecution intends to provide in-court identification of defendant by the officer at a new trial, the identification must be scrutinized at a Wade hearing to be sure it is free of taint and dependent on an independent source (United States v Wade, 388 US 218; see also, People v Adams, 53 NY2d 241, 251). Finally, the evidence of defendant’s guilt of narcotics possessory crimes on December 7, 1984 is sufficient under our standard review test, giving the People, as we must, every favorable interpretation since they persuaded a jury as a matter of fact, beyond a reasonable doubt, that defendant exercised a knowing dominion and control over the drugs.

On November 27, 1984, an undercover police officer, in the course of a drug buy operation, encountered defendant in a Bronx alleyway. Defendant asked if she wanted "coke” and directed her to knock on the door of a nearby house if she did. The undercover officer knocked, was admitted to an apartment, and told the occupants that she wanted to buy some cocaine. Before the buy was completed, defendant also knocked on the door, was admitted, and warned the occupants that the police were outside. The officer completed the buy and defendant told her that she would like the "good stuff’. She left the house and radioed her backup team that the buy was complete, but gave no descriptions of any of the participants. No arrests were made at that time.

The police subsequently secured a "no-knock” search warrant for the apartment. The same undercover officer returned to the apartment at approximately 5:25 p.m. on December 7, 1984 to attempt another buy. This time she encountered two men, neither of whom were present in the apartment during the earlier transaction. She made the buy, left the area, and radioed descriptions of the two men and the circumstances of the buy to her backup unit. She did not see defendant in or near the apartment on December 7. Other officers, armed with the warrant and the radioed confirmation, then entered the apartment. A detective observed defendant and two other individuals, a man and a woman, standing on a staircase in an alcove in the apartment. Defendant and the man, who was clutching a black bag, were about one foot apart. Defendant pointed a gun at the detective but dropped it at the detective’s command. The defendant and four other occupants of the apartment were arrested. The black bag contained cocaine. A search of the apartment disclosed more drugs and drug paraphernalia in an enclosed area under the stairs where defendant had been standing.

At 11:00 p.m. that evening at the station house, through a one-way mirror, the undercover officer viewed defendant for the first time since November 27; she also viewed the two men who had participated in the December 7 buy. All three men were handcuffed together. She identified the two men from the December 7 buy and then identified defendant as one of the persons she saw at the apartment in the course of the November 27 buy. There is no indication in the record, other than sparse, inconclusive references presented at trial, of any conversations before, during, or after the showup among the officers, especially with respect to the undercover officer’s identification of defendant.

Defendant’s pretrial motion for a Wade hearing was denied. At trial, the undercover officer was permitted to testify concerning her station house showup identification of the defendant as a participant in the November 27 transaction. She also identified him in court. The jury convicted him of sale of a controlled substance in the third degree in connection with the November 27 buy, and third and fourth degree possession of a controlled substance and possession of marihuana in the second degree in connection with the December 7 buy. The Appellate Division affirmed, without opinion.

The root of our analysis takes us back to United States v Wade (388 US 218, supra), where the Supreme Court, recognizing that "risks of suggestion attend” pretrial lineups and showups and "increase the dangers inhering in eyewitness identification” (id., at 229), held essentially that identification evidence may be inadmissible unless scrutinized for freedom from suggestiveness.

In People v Adams (53 NY2d 241, supra) and People v Riley and People v Rodriguez (70 NY2d 523), involving civilian showup identifications at a police precinct, we added that evidence of such inherently suggestive pretrial showup identifications had to be suppressed except in exigent circumstances.

The prior showup identification of defendant in this case by the undercover officer suffers from all the forbidden attributes of suggestiveness that led to suppression in the sampling of pertinent cases just noted. The defendant here was never seen by the officer during the December 7 buy. When she viewed him on December 7, he was handcuffed to the two men from whom she had just made a criminal purchase several hours earlier. The three alleged perpetrators were being held at the station house alone in a room into which the officer peered to make the identifications. We know nothing definitive of the police conversations with the officer which preceded or attended the showup. Not without significance, too, is the 10-day lapse between the November 27 buy and the December 7 showup — a factor not present in Adams, Riley or Rodriguez. The factors here heighten the real danger of calculated or careless misidentification.

Our analysis must also include consideration of cases acknowledging the significance of the expertise of police officers as trained identifying agents. Unlike People v Gissendanner (48 NY2d 543), where the suggestiveness concern was deemed neutralized because the police officer who identified the defendant had two contacts with the defendant before the commission of the crime, the identifying witness and the suspect here were not previously known to each other — the undercover officer had never seen defendant prior to the November 27 buy and did not see him again until the December 7 showup.

Likewise, the fact that the identifying witness in this case is a trained undercover police officer who made the prior drug purchase with defendant’s participation cannot, by itself, overcome the extreme features of suggestiveness present in this case. Thus, the subsequent showup does not qualify for exceptional treatment under People v Morales (37 NY2d 262) or People v Wharton (74 NY2d 921, supra). In Morales, we held not unduly suggestive a follow-up station house showup identification of a suspect by a trained and experienced undercover narcotics officer six hours after a buy-and-bust of the suspect. In that case, the officer had identified the suspect on the street immediately after the buy. We concluded that under those circumstances, the station house viewing was a confirmation that the right person had been arrested and was "actually 'consistent with good police work’ ” (37 NY2d, supra, at 272).

In Wharton, we added that the defendant’s request for a Wade hearing was not improperly denied where the showup identification occurred three hours after the defendant’s arrest for a buy-and-bust transaction. The trial court ultimately allowed into evidence the identification testimony of a trained, experienced undercover officer who had observed the defendant during the buy, knowing that the defendant would shortly be arrested, and who had viewed the defendant on the street while he was being arrested, previous to the showup. We concluded that the showup occurred at a "place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure.” (74 NY2d, supra, at 922-923.)

The instant case is critically different. The November 27 police operation in this case was not a "buy and bust”. The police chose not to arrest the participants in that buy and the undercover officer radioed no description of defendant to her backup team. The 10-day lapse between the first buy and the second transaction, followed by a highly suggestive combined custodial showup, was not an integral police procedure and puts this case into its own distinctively suspect orbit. The differences from Wharton and Morales are in kind, not just in temporal degree. Actually, the only likeness to those cases is that the station house identification was made by the undercover officer who made the original drug buy, and that surely cannot justify dispensing with necessary protections affecting identification procedures. Moreover, we carefully refrained in Wharton from engrafting a general "trained officer exception” to the necessary and readily applied sanctions against potentially erroneous or tainted identifications.

Comprehensive analysis, not superficial categorization, ultimately governs. Particular vigilance is necessary with respect to these sometimes speedy buy-and-eventual-bust situations, where very often multiple participants and transactions are involved. Misidentifications should be carefully guarded against lest innocent persons be swept into unlawful arrests and convictions. Trained and perhaps well-intentioned police officers may too easily fall prey to the pressures and official routinization of depersonalized identifications, which could also lead to unacceptable injustices. Showup evidence must be eschewed and, at the very least, subjected to Wade hearings in these circumstances to guard against these dangers, even for in-court identifications.

As to defendant’s remaining argument for dismissal of the December 7 criminal possession charges, based on the state of the record evidence before us, we conclude that the defendant’s role in the December 7 criminal drug transaction was sufficiently proved under our standard measure of review (People v Contes, 60 NY2d 620). The dissenting expression, by its terms, engages in a forbidden weight review, not the more limited sufficiency review allowed in our Court. Because the dissenting-in-part opinion takes a different approach to the resolution of this issue, we note that there is a view of the record as now before us for review under which an appellate court could reasonably be satisfied that this is not a "mere presence” case like People v Headley (74 NY2d 858) and People v Pearson (75 NY2d 1001).

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

Titone, J.

(dissenting in part). While I agree with the majority that a new trial should be ordered as to those charges stemming from the November 27th drug transaction, I would dismiss those counts of the indictment charging defendant with constructive possession of the drugs found on December 7, as, in my view, the People have failed to introduce sufficient evidence that defendant knowingly exercised dominion and control over those drugs.

The drugs in question were primarily found in an enclosed area underneath a stairway upon which defendant stood when the police executed a search warrant that they had obtained for the premises. Drugs were also found inside a black bag which was being held by a man standing next to defendant on the stairway. At defendant’s trial, no evidence was introduced that he owned, rented, or frequently visited the premises, or for that matter, had ever been on the premises other than on two occasions (see, People v Dawkins, 136 AD2d 726, 727). Nor was there any evidence that defendant had ever actually been in possession of the black bag or its contents. Instead, the jury was left to infer defendant’s constructive possession of the drugs in question from essentially the following facts: defendant’s presence on the premises at the time the search warrant was executed; his having pointed a gun at one of the officers who executed the warrant; his having 10 days earlier "steered” an undercover officer to the premises to purchase drugs; and his having, on this latter occasion, warned those inside the premises that police were in the vicinity. While these facts certainly indicate that illegal activities were engaged in, I cannot concur in the majority’s conclusion that they, even when viewed in a light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), constituted a sufficient basis from which the jury could rationally find defendant guilty of constructively possessing all the drugs found on the premises on December 7.

Proof that premises have been used for drug dealings has never been held to be sufficient to support a drug possession conviction of those merely present on the premises at the time drugs are found by police (see, People v Headley, 74 NY2d 858; People v Dawkins, supra). That there may also be evidence, as there is here, that such person had on a single earlier occasion steered someone to the premises to purchase drugs and warned those inside that the police were in the area, in my view, should not permit for a different result (cf., People v Sanabria, 73 AD2d 696). Such proof does not provide the necessary link between the person and the particular drugs which are later found on the premises, and thus leaves the jury to impermissibly speculate as to whether the person knowingly exercised dominion and control over those drugs.

Accordingly, I respectfully dissent from that part of the majority opinion which orders that defendant be given a new trial as to those counts of the indictment which charged him with criminal possession of the drugs found on December 7, as I would dismiss those counts of the indictment.

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

Order reversed, etc.

       The majority’s assertion that the evidence indicates defendant played a role in the December 7th "drug transaction” (majority opn, at 601) is misleading, as the record is absolutely bereft of any evidence that defendant participated in any illicit drug sale occurring on that date.


source: Caselaw Access Project

author: Bellacosa, J. Titone, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Patrick Scalza, Appellant.
    Argued September 6,1990;
    decided October 18, 1990

      POINTS OF COUNSEL

      Steven R. Bernhard for appellant.

      Denis Dillon, District Attorney (Lisa J. Becker and Bruce E. Whitney of counsel), for respondent.

      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H Schiff of counsel),
   OPINION OF THE COURT

Bellacosa, J.

Defendant was convicted by a jury of six counts of criminal possession of weapons and ammunition after his pretrial suppression motion was denied by the Nassau County Court. The County Court had preliminarily exercised its discretionary authority to refer the suppression matter to an authorized Judicial Hearing Officer (JHO) for the filing of a report as prescribed in CPL 255.20 (4). Defendant did not object to the use of this procedure at trial but challenged it on appeal, both facially and as applied, on State constitutional grounds only. The Appellate Division upheld the JHO referral statute while affirming the judgment of conviction. A Judge of this Court granted leave to appeal and we allowed the Attorney-General leave to intervene to support the statute’s constitutionality (Executive Law § 71). We now affirm.

CPL 255.20 (4), enacted in 1983 as part of a comprehensive package (L 1983, ch 840), provides relevantly: "Any pre-trial motion * * * may be referred by the court to a judicial hearing officer who shall entertain it in the same manner as a court. In the discharge of this responsibility, the judicial hearing officer shall have the same powers as a judge of the court making the assignment, except that the judicial hearing officer shall not determine the motion but shall file a report with the court setting forth findings of fact and conclusions of law” (CPL 255.20 [4]).

Defendant argues that article VI, §§ 10 and 11 of the New York Constitution, which establishes the County Court, does not allow any part of the court’s function to be discharged by anyone but a Judge. That is defendant’s strict jurisdictional argument addressed to the competence or power to decide. Defendant also asserts a due process violation, claiming that the manner and procedure under which the pretrial suppression motion referral operates deprived him of having this part of his case actually "heard” by a Judge.

The facial attack fails because the core of the statutory authorization retains for the Trial Judge the sole authority to "determine” all issues referred to a JHO by expressly withholding from the JHO the power to "determine” anything. Thus, no unauthorized or unconstitutional diversion of the trial court’s exclusive jurisdiction and responsibility to decide is threatened. We also discern no unfairness or lapse of due process in the method prescribed for the statute’s operation” Defendant’s "as applied” prong, unlike his facial one, must be customarily preserved, and inasmuch as that prerequisite is lacking here, we cannot resolve that claim.

Defendant was arrested and charged with six counts of criminal possession of a weapon, third degree, after the police discovered a large quantity of weapons and ammunition in his home and automobile. The pretrial hearing for suppression of evidence focused on the seized contraband and defendant’s statements to the police. The JHO took testimony, filed findings of fact and conclusions of law with the County Court, and recommended denial of the suppression motion. County Court, after reviewing the report and the entire record of the hearing, adopted the JHO’s findings and recommendation and denied defendant’s motion to suppress in the court’s own order.

We start with the elementary principles that acts of the Legislature enjoy a strong presumption of constitutionality (People v Davis, 43 NY2d 17, 30) and that it possesses broad authority to adopt procedural rules for the courts (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5-6). The substantial burden of proving unconstitutionality beyond a reasonable doubt rests with a statute’s antagonist (Matter of Van Berkel v Power, 16 NY2d 37, 40).

A special committee, organized by the judicial branch itself, studied and recommended the JHO program in the early 1980’s (see, Report of Comm to Utilize Services of Retired Judges, chaired by former Mayor John Lindsay, to then-Chief Judge Cooke, reprinted in the 5th Ann Rep of Chief Administrator of Courts [1983]). The Committee proposed the creation of a new title and function, that of JHOs, to be performed by former Judges. It found that former "judges, if utilized properly, could make a significant contribution toward alleviating some * * * backlog and delay” (id., at 110). One specific objective was to utilize the services of these experienced officers in expediting motion practice in criminal cases as a direct aid to Judges, freeing the Judges to conduct more trials (id., at 112-113).

The Legislature, spurred by the initiative and findings, enacted CPL 255.20 (4) as part of an integrated plan to use former Judges as Hearing Officers to expedite the disposition of cases in civil matters and in some criminal case aspects (L 1983, ch 840, §§ 2-15). In criminal matters, JHOs are authorized to hear and report on pretrial motions, as was done here, and they may also, with the parties’ consent, try issues of fact and preside at bench trials of class B and unclassified misdemeanors (CPL 350.20). Recent efforts to authorize expanded utilization have not yet been enacted (see, Ann State of Judiciary Message of Chief Judge, 1989-1990, at 33; Assembly Bill 8228-A, 1989-1990 Legislative Session, introduced at the request of the judicial branch).

As directed under chapter 840 (Judiciary Law § 854), the Chief Administrator of the Courts promulgated rules for JHO qualification and for operational procedures (see, Rules of Chief Administrator, 22 NYCRR part 122). After consultation with appropriate Administrative and Deputy Chief Administrative Judges and the Presiding Justice of the appropriate Appellate Division (22 NYCRR 122.2 [c], [d]), qualified former Judges were designated for availability and then selection by Trial Judges as needed.

CPL 255.20 (4), in authorizing a Trial Judge to select in the court’s discretion a JHO from a previously screened and authorized list to perform only the function of holding a pretrial hearing and making a report that is filed with the referring court, recognizes and preserves the trial court’s nondelegable and exclusive authority to decide the suppression motion. The court decides only after review of the report, all exhibits, motion papers, and the complete record of the hearing. The Trial Judge always keeps the plenary power to reject, accept or modify the JHO’s report in whole or in part based on the court’s independent review. Significantly, the Trial Judge designates in the first instance and holds the tether on the case throughout the completion of the referral. Indeed, the statute implicitly authorizes the trial court sua sponte or on application to cancel the referral and bring the entire matter back before itself, go beyond the written record and order further proceedings such as hearing relevant witnesses for itself if deemed necessary, or even to redo the pretrial proceedings de novo (see, 1983 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 255.20, 1990 Cum Ann Pocket Part, at 190).

Although the defendant argues that article VI, §§ 10 and 11 of the New York State Constitution prohibit referrals to JHOs to conduct suppression hearings, these sections contain no such express or implied prohibitory language. Rather, they provide essentially for the organization and jurisdiction of County Courts. CPL 255.20 (4) in no way clashes with those sections and does not undermine or diminish the court’s exclusive power to decide. By its terms, the statute preserves and reinforces it.

Defendant’s due process claim is readily answered. United States v Raddatz (447 US 667 [1980]) provides useful guidance in this regard. The Supreme Court there considered a similar Federal due process challenge to the Federal Magistrates Act (28 USC § 636 [b] [1]). The purpose and design of that statute are akin to CPL 255.20 (4), in that the Federal Magistrates Act authorizes a United States District Court to refer a suppression motion to a Magistrate, who files proposed findings of fact and recommendations with the District Court. The District Court Judge, not the Magistrate, actually decides the motion on the record developed before the Magistrate. The Supreme Court upheld the procedure, concluding that due process was satisfied even though the District Judge may not personally listen to the witnesses, since the Judge acts as the ultimate decision maker and has the discretion to accept, reject or modify the Magistrate’s proposed finding (447 US, supra, at 680-681). On the due process argument there, the Supreme Court differentiated the purposes underlying a suppression hearing from the ultimate issue of guilt or innocence, and concluded that the protections at a suppression hearing "may be less demanding and elaborate than the protections accorded the defendant at the trial itself.” (United States v Raddatz, 447 US, supra, at 679.)

In the instant case, too, defendant’s right to be heard by the court, with all attendant protections and procedures, is satisfied by the terms of the statute. Indeed, defendant took advantage of his due opportunity for a hearing before the JHO, and his motion papers and arguments addressed to the pretrial record and the JHO’s findings were fully presented to the suppression court Judge, who then reviewed the entire record before making the suppression motion determination in the court’s own order. Thus, while the suppression Judge did not personally listen to the witnesses’ testimony, the court "heard” the motion in a customary juridical sense of that phrase (e.g., deciding or reviewing a matter or record on submitted papers without oral presentation). The Judge alone then denied the motion, not the JHO.

We have held that due process claims under New York’s Constitution, like those raised under the United States Constitution, require the balancing of factors — "an evaluation of the interests of the parties to the dispute, the adequacy of the contested procedures to protect those interests and the government’s stake in the outcome.” (La Rossa v Abrams, 62 NY2d 583, 588; see also, Mathews v Eldridge, 424 US 319, 334-335.) Here, defendant’s opportunity to present evidence and testimony to a neutral fact finder selected by the Judge who will decide the case and all its issues, coupled with the Trial Judge’s de novo review powers and options, provides process that is due. The investigative and empirical record also manifest a substantial State interest in the objective of CPL 255.20 (4) to lessen delay, a recognized evil to the fair administration of the criminal justice system. The discretionary statutory procedure helps in this regard by supplying the court system with the excellent resource of experienced former Judges who may hear, but not determine, time-consuming pretrial motions as judicial officers to sitting Judges so that the latter can concentrate efficiently on trying cases. Thus, we hold that CPL 255.20 (4) is facially valid; defendant’s reviewable arguments fail; and his burden has not been satisfied.

While we cannot decide the "as applied” constitutionality because defendant failed to object to the qualifications of the specific JHO to whom this pretrial matter was referred, we note that the requirements for JHO designation were recently strengthened (Rules of Chief Administrator of Courts, 22 NYCRR 122.1 [a]). Effective January 1, 1991, a retired Judge must have served at least a year as a Judge of the Unified Court System in a court other than a Town or Village Court to qualify for designation as a JHO.

The views expressed in the dissenting opinion do not warrant direct response other than the analysis and authorities already supplied by the opinion of the Court to decide this case.

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

Titone, J.

(dissenting). Stressing the goals of improving the efficiency of our courts and expediting the disposition of pretrial motions in criminal cases, the majority has ratified yet another legislative effort to transfer the duties of elected, constitutional Judges to administratively appointed functionaries. While recognizing as a general principle the existence of a core of judicial authority that is both "nondelegable and exclusive” (majority opn, at 608), the majority nevertheless declines to include in that category what I consider to be one of the most important areas of fact finding: determinations of credibility based on the witnesses’ appearance, tone of voice and demeanor. Since, in my view, the majority’s analysis assigns too little importance to the principle that "[t]he one who decides must hear” (Morgan v United States, 298 US 468, 481) and, as well, accords insufficient weight to the individual liberty and privacy interests that are at stake in these pretrial proceedings, I must, respectfully, dissent.

Initially, I do not quarrel with the goals of alleviating the backlog in the criminal courts and expediting the movement of cases through the system. As the majority notes, protracted delays in resolving criminal charges undermine the fairness of our criminal justice system and erode the public’s confidence in its ability to play a meaningful role in the growing crime problem confronting our society. Further, as the 1983 Report prepared for former Chief Judge Cooke demonstrated, there can be no doubt that our State’s retired Judges, with all of their special knowledge and experience, have a substantial and important contribution to make in improving the efficiency of our courts (see, Report of Comm to Utilize Services of Retired Judges, reprinted in 5th Ann Rep of Chief Administrator of Courts [1983]). However, our role as a reviewing court is not to endorse or reject the legislatively identified aims, but rather to determine whether the manner in which those aims have been implemented, by both the Legislature and the Chief Administrator, comports with constitutional standards. It is to those constitutional considerations that I now turn.

Article VI, §§ 10 and 11 of the State Constitution provide for the continuance of the County Courts, set forth the terms and qualifications of County Court Judges and establish the jurisdiction of these courts over "all crimes and other violations of law.” Although the majority makes the sweeping assertion that these constitutional sections merely "provide * * * for the organization and jurisdiction of County Courts” (majority opn, at 609), the majority also acknowledges the County Courts’ "nondelegable and exclusive authority” to decide suppression motions, making clear its own view that there are, in fact, limits on what tasks may be removed from the list of traditional judicial responsibilities and assigned elsewhere. Thus, notwithstanding the Legislature’s constitutional power to prescribe procedural rules to govern the practice in the County Courts (NY Const, art VI, § 30; see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1), we are all evidently in agreement on the basic principle that article VI, §§ 10 and 11 establish a bedrock of inalienable judicial authority and duty. It is in relation to the precise contours of this authority that we differ.

The majority concludes that CPL 255.20 (4) does not result in an impermissible delegation of judicial authority because it is the County Court Judge who decides whether a reference should be made, it is the Judge who "holds the tether on the case throughout the completion of the referral” and, most importantly, it is the Judge who, despite a reference to a Judicial Hearing Officer (JHO), retains the plenary power to accept, reject or modify the JHO’s determination — and even to conduct a de novo review where necessary (majority opn, at 608-609). However, in this context, "[o]ne of the essential elements of the determination * * * is the weighing and appraising of testimony.” (Holiday v Johnston, 313 US 342, 352.) In my view, a Judge who merely "holds the tether” and does not personally preside at a suppression hearing cannot realistically be expected accurately to perform that task.

As this Court has previously observed, there are "peculiar advantages [to] having seen and heard the witnesses” that cannot be replaced by a review of the cold record (People v Prochilo, 41 NY2d 759, 761; see, United States v Oregon Med. Socy., 343 US 326, 339). Thus, by authorizing references to JHOs with the understanding that they will preside at suppression hearings and make recommended "findings of fact” and "conclusions of law”, CPL 255.20 (4) permits the transfer of a critical aspect of the judicial decision-making process to nonjudicial officers and' thereby results in an impermissible delegation of the elected County Court Judges’ authority. Moreover, the impairment can hardly be characterized as de minimis, since the vast majority of suppression determinations involve, as the primary fact-finding task, an assessment of the conflicting witnesses’ truthfulness.

Contrary to the majority’s analysis, the Judge’s apparent implied authority to hold de novo proceedings (see, 1983 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 255.20, 1990 Cum Ann Pocket Part, at 190), which the Court has now formally adopted as law, does not ameliorate the statute’s constitutional infirmity. Even assuming that a residual judicial power to go beyond the record developed before the JHO was contemplated, it is evident that the Legislature did not intend that such power would be used with any degree of frequency, since routine resort to de novo proceedings would reduce the JHOs to "just another layer of delay and red tape” (id.). Moreover, the availability of de novo proceedings in those "exceptional instances where the court * * * want[s] to hear the parties or their counsel” (id.) does not provide a solution for the bulk of ordinary cases in which what I believe to be the nondelegable fact-finding duties of the court are, in fact, delegated to JHOs.

It must be stressed that the delegation of such an important judicial function to nonjudicial officers represents a substantive constitutional infirmity and not a mere technical objection. By adopting article VI, §§ 10 and 11 of the State Constitution, the people of this State have indicated their wish to have matters within the jurisdiction of the County Courts determined by Judges who are county residents and are chosen by the county’s electors every 10 years (see, NY Const, art VI, § 10 [a], [b]). Presumably, the provision for election to a 10-year term represents the people’s chosen method of preserving a measure of judicial independence while, at the same time, ensuring a degree of judicial accountability. This balance is upset, and the accountability/independence mechanism is circumvented, when substantial decision-making functions are transferred from County Court Judges to administratively designated JHOs (see, 22 NYCRR 122.2 [c], [d]). Ironically, it is in the suppression hearing context, where the enforcement of basic constitutional rights is at stake and the credibility of law enforcement personnel must be judged, that the polar values of independence and public accountability take on particular importance. "Indeed, it is precisely in resolving constitutional issues that are dependent on questions of credibility as between a government official and one accused of [a] crime that a detached and independent arbiter may be most indispensable.” (United States v Raddatz, 447 US 667, 711 [Marshall, J., dissenting].) And, contrary to the majority’s suggestion (majority opn, at 610), an appointed JHO’s purported neutrality is no substitute for the independence and long-term public accountability of an elected Judge.

As to the majority’s disposition of appellant’s due process argument, I find myself once again, unable to agree. Of course, as the majority observes, the Supreme Court majority’s decision in United States v Raddatz (447 US 667, supra) is all but dispositive of any claims appellant might make under the Due Process Clause of the Federal Constitution. However, we remain free to chart a separate course under our own State constitutional due process provisions (NY Const, art I, § 6; see, e.g., People v Vilardi, 76 NY2d 67). Although the majority has apparently chosen to follow the Raddatz analysis in resolving appellant’s State constitutional claim, I would opt for a different approach in light of our long-standing recognition of the central importance of suppression hearings in many criminal proceedings (see, People v Anderson, 16 NY2d 282). Indeed, while I agree with the majority’s general premise that, like its Federal counterpart, due process analysis under the State Constitution requires a balancing of the parties’ interests, I cannot concur in its conclusory assertion, with no reference at all to the accused’s weighty interests, that the opportunity to present evidence to a "neutral fact finder” is all the process that is due (majority opn, at 610).

The difficulty I have with the majority’s position, as well as with the position of the Raddatz majority, is their assumption that the accused’s interest in the outcome of a suppression hearing is worthy of only diminished protection because the ultimate issue of guilt or innocence is generally not involved. The Raddatz majority went even further, suggesting that a fair analogy can be made to the interests at stake in administrative adjudications, which are also often made by agency boards on the basis of cold records (447 US, at 680). The latter suggestion is unacceptable because it ignores the obvious fact that, unlike most administrative proceedings, the outcomes of suppression hearings implicate the basic liberty interests of the accused. Furthermore, although not considered as a serious or important factor by either the Raddatz court or this Court, the results in these pretrial suppression hearings implicate the constitutional rights of privacy and freedom from compelled and, in some instances uncounseled, self-incrimination — matters which are of paramount concern to all citizens.

Most importantly, the majority’s analysis in this case is wanting because it ignores that, as a practical matter, "the determination of the motion to suppress often determines the ultimate question of guilt.” (People v Anderson, 16 NY2d 282, 288, supra.) Even where it is not actually determinative, "a denial of a motion to suppress evidence is a crucial step in a criminal prosecution; it may often spell the difference between conviction or acquittal” (People v Lombardi, 18 AD2d 177, 180, affd 13 NY2d 1014, quoted in People v Anderson, supra, at 287). Accordingly, we have held that a defendant has the same "absolute” right to be present at a suppression hearing as he has to be present at trial and that "[e]xpediency may not dictate procedural changes” in that result (People v Anderson, supra, at 287-288).

I would apply the same principles here and conclude, as did Justice Marshall in Raddatz, that "[a] rule that would allow a criminal defendant to face a jail sentence on the basis of factual findings made by one who has not heard the evidence is * * * foreign to notions of fair adjudicative procedure embodied in the Due Process Clause.” (United States v Raddatz, 447 US, at 697 [Marshall, J., dissenting].) Even in the case of pretrial suppression hearings, "our constitutional tradition rejects the notion that factual findings in criminal cases may be made by an official who acts in isolation and on the basis of a cold record.” (Id., at 695-696.) Since that is precisely what CPL 255.20 (4) authorizes when it permits the delegation of the duty to preside and make fact findings to JHOs, I would hold that statute to be violative of our State Constitution.

Before closing I must note my concern with the apparently growing trend to replace constitutional Judges with JHOs as a means of alleviating the overcrowded dockets in our courts. Under CCA 110 (e), "hearing officers” appointed from a list by the local Administrative Judge may try and determine litigated, nonjury controversies in the Housing Part of New York City Civil Court, may enter final, appealable judgments and may punish for contempt. Shortly after this legislative delegation of judicial authority was upheld by the Appellate Division (Glass v Thompson, 51 AD2d 69), the Legislature changed the title of the position from "hearing officer” to "housing judge” to invest these appointees "with as much authority and dignity as possible” (Babigian v Wachtler, 133 Misc 2d 111, 114, affd 126 AD2d 445, affd 69 NY2d 1012). Similarly, in 1985 the Legislature enacted the Child Support Enforcement Act and gave appointed "hearing examiners” substantial adjudicative responsibilities in Family Court (L 1985, ch 809; see, Family Ct Act §§ 433, 439). Finally, as the majority notes, there have been recent, albeit unsuccessful, efforts "to authorize expanded utilization” of JHOs in criminal proceedings (majority opn, at 608).

In light of this recent history, there is much room for concern about the gradual replacement of the traditional judicial system, with all its rigidities and awkwardness, in favor of one that is more efficient and flexible but rests heavily on the use of nonjudicial personnel. While the chronic logjams in our courts, the threat of inundation and breakdown in some of the most critical parts of the justice system and the insistent public pressure to "process” cases more swiftly make this a tempting option, I am hesitant to embrace it too readily, lest "principles that were meant to endure be sacrificed to expediency.” (United States v Raddatz, 447 US, at 714 [Marshall, J., dissenting].) Accordingly, I dissent.

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

      . This is a case in point. At his suppression hearing, appellant testified that, while in handcuffs at the police station, he had made specific and repeated requests for counsel, all of which were ignored. He further stated that the consents he had given for the searches of his car and home were obtained as a result of police threats that the vehicle and house would otherwise be "taken apart” and "torn up”. Appellant’s wife stated that similar threats had been made to her when the police arrived at the house for the search. The police officers involved in the questioning and searches gave an entirely different version of events. Thus, the disposition of appellant’s motion to suppress his statements and physical evidence turned largely on a determination of the relative credibility of appellant’s and the investigating officers’ conflicting testimony.

      . Our Court has not squarely addressed the issue presented in Glass. In Babigian v Wachtler (69 NY2d 1012), which involved a challenge to a subsequent related measure, we merely noted that because the litigants had assumed the correctness of the Glass decision we would do the same for purposes of deciding the issue then before us.

      . Ironically, despite the majority’s reliance in this case on the trial court’s continuing "nondelegable and exclusive authority to decide the suppression motion” (majority opn, at608-609), one of the proposals to which the majority has referred would have transferred to JHOs the power to "hear and determine”, rather than merely to "hear and report”, in certain designated matters (Ann State of Judiciary Message of Chief Judge, 1989-1990, at 33, cited in majority opn, at 608).


author: Simons, J. Hancock, Jr., J.

text:
    Howard Golden et al., Respondents, v Merrell E. Clark, Jr., as Chair of the Conflicts of Interest Board of the City of New York, et al., Appellants.
    Argued September 12, 1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Frederick P. Schaffer and Grace Goodman of counsel), for appellants.

      Henry Mark Holzer and Kenneth K. Fisher for Howard Golden and others, respondents.

      Robert Allan Muir, Jr., for Lilly B. Bachmann and another, respondents.

      Robert B. Fiske, Jr., for Citizens Union of the City of New York and others, amici curiae.

   OPINION OF THE COURT

Simons, J.

This appeal questions whether the voters of New York City may adopt a Charter provision that requires high city officers to forego certain political offices as a qualification for holding public office. Plaintiffs, various City and political party officials, voters and political parties, instituted this action asserting that the provision, section 2604 (b) (15) of the New York City Charter, deprives them of their fundamental rights under the State Constitution, that it does so without compelling justification and that it is, therefore, void. Defendants are the chairman and members of the City’s Conflicts of Interest Board charged with implementing and enforcing the section. After issue was joined, both sides moved for summary judgment. Supreme Court granted plaintiffs’ motion and declared the section void and the matter is now before us on direct appeal pursuant to CPLR 5601 (b) (2). There should be a reversal.

I

During the latter 1980’s corruption was exposed in the New York City government centering on Donald Manes, Borough President and Democratic leader of Queens, and a number of investigations were initiated by Federal and State authorities. Before the investigations concluded, several public and party officials in the City were convicted of criminal activities and sentenced to jail. These disclosures provided the impetus for the appointment by Governor Cuomo and Mayor Koch of a State-City Commission on Integrity in Government charged with the responsibility of assessing the lessons learned from the investigations and recommending reforms. In its report, the Commission called for the revision of the ethical provisions of the City Charter to protect the public against corruption and undue influence of a business or political nature.

At the time, the Charter was undergoing revision as a result of extended litigation in the Federal courts challenging the form of the city government, particularly the makeup and powers of the Board of Estimate (see, Morris v Board of Estimate, 647 F Supp 1463, affd 831 F2d 384, affd 489 US 688). The New York City Charter Revision Commission, appointed for that purpose, also recognized the weakness of the existing provisions governing ethical matters. Accordingly, it decided to recast chapter 68 of the Charter, entitled "Conflicts of Interest”, and submitted to the electorate a package of revisions addressing the issue. Section 2604 (b) (15) was among those the voters approved. Plaintiffs maintain that the section violates several provisions of the State Constitution (NY Const, art II, § 1 [right to vote]; art I, § 1 [right against disfranchisement]; art I, § 11 [equal protection]; art I, § 9 [right of association]; art I, § 8 [freedom of speech]).

n

Plaintiffs contend first that section 2604 (b) (15) denies them equal protection of the law by infringing on various fundamental rights. The threshold determination is whether the challenged provision establishes a classification which burdens those rights. If it does, it must withstand strict scrutiny and is void unless necessary to promote a compelling State interest and narrowly tailored to achieve that purpose (see, Matter of Rosenstock v Scaringe, 40 NY2d 563; Alevy v Downstate Med. Center, 39 NY2d 326, 331-332). If plaintiffs’ fundamental rights are not impaired, then the provision may be sustained if there is a rational basis for its enactment (Maresca v Cuomo, 64 NY2d 242, 250; Matter of Rosenstock v Scaringe, 40 NY2d 563, supra).

A

We reviewed claims similar to those of plaintiffs in Matter of Rosenstock v Scaringe (supra). In that case, plaintiff challenged section 2103 (3) of the Education Law which prohibits more than one member of a family from being a member of the same board of education in any school district. She contended that the provision was an unconstitutional infringement under the Equal Protection Clauses of the Federal and State Constitutions of both her personal right to seek public office and the electorate’s fundamental right to vote. We held that the direct impact of the law was on the right to hold office which was not sufficient to require strict scrutiny of the statute (citing Bullock v Carter, 405 US 134, 142-144). Insofar as the fundamental right to vote was concerned, the statute had only an incidental effect, we said, and did not disfranchise any identifiable class of the electorate. Accordingly, we applied a rational basis test and found the law to be rationally related to the legitimate State interest of insuring that a board of education represent a wide cross section of the community. Plaintiffs maintain that the Rosenstock decision is not applicable to this action because it relates to positions on a school board. No persuasive constitutional basis for distinguishing that office from offices of other municipal corporations is suggested, however, and we find none.

Plaintiffs also rely on several Federal decisions. An analysis of them is appropriate because our State Constitution’s equal protection guarantee is as broad in its coverage as that of the Fourteenth Amendment (see, Under 21 v City of New York, 65 NY2d 344, 360, n 6; Matter of Elser v Walters, 56 NY2d 306, 313-314).

Generally, the Supreme Court has identified two types of ballot access cases which involve fundamental rights and require heightened scrutiny: restrictions based on wealth, which unfairly burden the availability of political opportunity, and restrictions arising from classification schemes that impose special burdens on new or small political parties or independent candidates (see, Clements v Fashing, 457 US 957, 964; see generally, Tribe, American Constitutional Law § 13-19 [2d ed 1988]). The two types are illustrated by Bullock v Carter (405 US 134, supra) and Illinois Elections Bd. v Socialist Workers Party (440 US 173).

Bullock v Carter (supra) involved a Texas statute imposing substantial filing fees on potential candidates as a condition to the right to run for local offices. Although the court found that the existence of barriers to a candidate’s access to the ballot "does not of itself compel close scrutiny”, it nonetheless held the filing fee requirement unconstitutional because it was "patently exclusionary [in] character. * * * fall[ing] with unequal weight on voters, as well as candidates, according to their economic status.” (Bullock v Carter, supra, at 143-144.) Inasmuch as the statute had a direct and appreciable impact on the right to vote, the court applied strict scrutiny ánd, finding no compelling State interest for the impositions, ruled that the statute denied Texas citizens equal protection of the laws (see also, Lubin v Panish, 415 US 709).

In Illinois Elections Bd. v Socialist Workers Party (440 US 173, supra), the court struck down provisions of an Illinois law which burdened independent candidates and small political parties running for offices of a political subdivision by requiring them to file petitions with signatures equaling 5% of the number of votes cast in the previous election in that subdivision. The law required only 25,000 signatures for State-wide candidates, however, and therefore produced incongruous results in Chicago where a new party or independent candidate had to obtain substantially more than 25,000 signatures to gain access to the ballot. The court applied strict scrutiny to the law because it burdened the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively (see also, American Party v White, 415 US 767, 780).

By contrast, in Clements v Fashing (457 US 957, supra), the Supreme Court upheld two provisions of the Texas Constitution which restricted a public official’s ability to become a candidate for another public office. A "serve-your-term” provision prohibited officeholders from cutting short their current terms to serve in the State Legislature and a "resign-to-run” rule provided that holders of certain offices automatically resign their positions if they become candidates of any other elected office. The court again refused to classify candidacy as a fundamental right (Clements v Fashing, supra, at 963 [plurality opn]) and held that the challenged provisions neither unfairly burdened the availability of political opportunity nor did they contain any classification that imposed special barriers on minority political parties or independent candidates. Justice Stevens, concurring, found no need to decide whether "strict scrutiny” or "rational basis” was the correct standard because he found that the disparate treatment in the case was not inconsistent with any Federal interest protected by the Equal Protection Clause.

Section 2604 (b) (15) comes within the Clements rationale. It neither imposes a barrier to candidacies based on wealth nor restricts the political opportunity of minorities, minority political parties or independents by means of an impermissible classification scheme. Rather, the section is neutral in its application and the burden it imposes on certain high officeholders does not "depend upon political affiliation or political viewpoint.” (See, Clements v Fashing, supra, at 965.) Moreover, the section has no direct impact on one’s fundamental right to vote and it does not disfranchise any identifiable class of voters (see, Matter of Rosenstock v Scaringe, supra). Its impact on voting rights is, at most, only incidental.

B

Inasmuch as plaintiffs’ fundamental rights have not been sufficiently impaired by section 2604 (b) (15) to require strict scrutiny, the section can be sustained against an equal protection challenge if it is shown to be rationally related to some conceivable and legitimate State interest (Maresca v Cuomo, supra; Matter of Rosenstock v Scaringe, supra; Alevy v Downstate Med. Center, supra, at 332).

Section 2604 (b) (15) is intended to eliminate conflicts of interest that arise when high public officials are simultaneously subject to the demands of both their constituencies and their political parties, to broaden opportunities for political and public participation, to reduce the opportunities for corruption inherent in dual officeholding, and, through all of these methods, to increase citizens’ confidence in the integrity and effectiveness of their government. These are legitimate governmental purposes and have been identified as such both judicially and legislatively. Thus, the courts have upheld laws limiting the partisan political activity of high-ranking city officials (see, Belle v Town Bd., 61 AD2d 352, 358 [forbidding town officers, employees or members of administrative boards from holding certain positions in political parties]) or limiting the political activity of State employees because of the public office they hold (Matter of Purdy v Kreisberg, 47 NY2d 354, 361-362 [rule proscribing police activity in political campaigns]; Boyle v Kirwin, 39 AD2d 993 [forbidding State police from holding public or political office]; Matter of Lecci v Looney, 33 AD2d 916, 917 [police officers prohibited from active politics and from active participation in any movement for the nomination or election of candidates for political or public office], Iv denied 26 NY2d 612).

The Legislature has also recognized the legitimate State interest of such restrictions by enacting Public Officers Law § 73 (9) which forbids certain party officers from serving as "a judge * * * attorney-general or deputy or assistant attorney-general or solicitor general, district attorney or assistant district attorney” (see also, Matter of Burns v Wiltse, 303 NY 319 [dual nomination for candidacy prohibited under County Law]). Indeed, the Legislature has forbidden even former State officers and legislators from engaging in certain activity related to their prior office for two years after their termination (Public Officers Law §73 [8]). As plaintiffs concede, in the absence of an infringement on a fundamental right, such laws are within the Legislature’s "hardly doubted power” (Rapp v Carey, 44 NY2d 157, 160; see also, Forti v New York State Ethics Commn., 75 NY2d 596, 612-613 [declaring Public Officers Law § 73 (8) constitutional on equal protection grounds because the Legislature could rationally conclude that risk of undue influence, or the appearance thereof, resulting from prior State service is significant]). Section 2604 (b) (15) is addressed to these State interests and is rationally related to advancing them. Consequently, it does not violate plaintiffs’ right to equal protection under the State Constitution.

m

Plaintiffs also allege that the City Charter provision, by prohibiting high City officials from holding certain political offices, violates fundamental rights of association and free speech secured to political parties and individuals by the State Constitution (NY Const, art I, §§ 8, 9).

Analysis starts by examining whether the challenged provision significantly burdens rights protected by the State Constitution. If it does, then it may be sustained only if it advances a compelling State interest (see, Eu v San Francisco Democratic Comm., 489 US 214, 222). Plaintiffs have failed to make that inquiry, however, and merely have assumed that section 2604 (b) (15) burdens political speech and associational rights. Finding no compelling State interest for the Charter provision, they contend it is invalid.

In our view, section 2604 (b) (15) does not impair constitutional rights of political parties and, therefore, the City need not demonstrate a compelling necessity for adopting it. Indeed, the section is entirely neutral on issues involving party politics and does no more than prohibit the holding of both high political office and high public office at the same time. It does not deprive political parties or their members of the right to associate with the individuals of their own choosing or the right to identify the people who constitute a political party. Nor does it prohibit political parties from expressing their opinions or selecting their own style of internal organization. The party is free to select a party official as its candidate for any position in City government and may also select a high City official to lead its party but the same person cannot represent the party members in both capacities at the same time. The dissenter contends that the restriction indirectly impairs the associational rights of political parties and that even "indirect restrictions may effect associational freedoms” and constitute a constitutional violation (see, dissenting opn, at 635, quoting Justice Brennan in Elrod v Burns, 427 US 347, 362). The point, however, is that there has been no impairment of plaintiff political parties’ associational rights, either directly or indirectly. Although groups of voters have a constitutional right to advance a candidate to represent their views, this associational right does not require that a particular individual serve as their candidate (see, Tribe, American Constitutional Law, at 1098, n 5 [2d ed]).

In contending otherwise, plaintiffs rely principally upon Tashjian v Republican Party (479 US 208) and Eu v San Francisco Democratic Comm. (supra), cases which differ from the one before us because they involve statutes that dictated how a political party should conduct its internal affairs. Thus, in Tashjian, the Republican Party of Connecticut challenged, on First Amendment grounds, a State election statute which required voters in any party primary to be registered members of that party. The Supreme Court held that the statute, which limited the group of registered voters whom the party could invite to participate in the basic function of selecting the parties’ candidates, deprived the party of its First Amendment right to enter into political association with individuals of its own choosing (Tashjian v Republican Party, supra, at 214-216).

In Eu the Supreme Court invalidated provisions of the California Election Code that prohibited official governing bodies of political parties from endorsing candidates in party primaries. The statute also controlled the size and composition of the State central committees, set forth the rules governing the selection and removal of committee members, set the maximum term of office for the chair of the State central committee and required that the chair rotate between residents of northern and southern California. The court found that this statute burdened the freedom of speech rights of political parties and their members by hindering the ability of the party to spread its message and the ability of voters to inform themselves about the candidates. Moreover, by dictating the organization and composition of the parties’ governing bodies and banning primary endorsements, the law also infringed upon a party’s protected associational right to identify the people who constituted the party and to select a leader who best represented its ideology and preferences.

These authorities are not persuasive because New York City’s Charter provision, unlike the statutes considered in those cases, does not speak to political party matters. It speaks to the qualifications for holding public office and was intended to do no more than prevent conflicts of interest and the possible corruption in City government they may engender by imposing qualifications on certain high City officials. It leaves political parties free to organize and participate in the election process without constraint.

Moreover, the section does not impermissibly burden the fundamental rights of the individual plaintiffs. The Supreme Court decision in Civil Serv. Commn. v Letter Carriers (413 US 548, 565) is dispositive. Although recognizing the extensive impairment of Federal employees’ First Amendment rights by the Hatch Act, the court there upheld its limitations on partisan political activities because they were necessary to insure that the government and its employees not only execute the laws impartially but also appear to the public to be doing so (see also, Broadrick v Oklahoma, 413 US 601). The Supreme Court referred to these decisions in Clements v Fashing (457 US 957, 972, supra) when discussing the First Amendment rights of elected State officials and suggested that even broader restraints would be permissible for elected officeholders, presumably because of their greater powers and responsibilities. Section 2604 (b) (15) is much less restrictive than the statute addressed in the civil servant cases, however, and permits City officials to engage in a broad range of personal or financial activity in support of a candidate or cause. Any de minimis burden the Charter provision imposes on individual rights of expression or association is justified by the important governmental interests underlying it (see, supra, at 626).

IV

Finally, plaintiffs allege that section 2604 (b) (15) of the New York City Chárter constitutes an impermissible delegation of rule-making authority to the Conflicts of Interest Board. The provision authorizes the Board to promulgate rules defining two specific terms, i.e., (1) which enumerated public servants are "charged with substantial policy discretion”, and therefore subject to the section’s prohibition, and (2) the "lesser political officefs]” a member of the City Council may hold.

As we noted in Matter of Levine v Whalen (39 NY2d 510, 515), "[t]he Legislature may constitutionally confer discretion upon an administrative agency only if it limits the field in which that discretion is to operate and provides standards to govern its exercise.” The provisions of the Charter itself make clear that the framers sought to bar public servants with "substantial policy discretion” from certain party offices and to permit persons holding "lesser political offices” than district leader to also serve as City Council members. Section 2600, the preamble to chapter 68, sets forth the guiding purpose of the chapter, stating: "These prohibitions on the conduct of public servants are enacted to preserve the trust placed in the public servants of the city, to promote public confidence in government, to protect the integrity of government decision-making and to enhance government efficiency.” Section 2603 (a), which delegates to the Board the general power to make such rules as are necessary under the chapter, also provides direction by stating that such rules are to be "consistent with the goal of providing clear guidance regarding prohibited conduct.” Taken together, these Charter provisions provide reasonable standards to govern the Board’s action in a limited and specified field for a stated purpose (see, Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186, 191; Matter of Levine v Whalen, 39 NY2d 510, 515, supra).

V

In sum, plaintiffs’ challenges must fail. There is simply no basis for plaintiffs’ assertions that a qualification for public office that broadens participation in government by addressing the conflicts and corruption that have resulted from the concentration of power in a few officeholders, somehow restricts associational or expressional freedoms. This conclusion may be reached by an application of common sense and logic, but it is also soundly supported by traditional constitutional analysis. The Charter provision, a result of New York City’s recent sordid experience, and the desire of its electorate to restore public confidence in government, is easily sustainable after that analysis is made.

Accordingly, the judgment of Supreme Court should be reversed, with costs, plaintiffs’ motion for summary judgment denied, defendants’ cross motion for summary judgment granted, and section 2604 (b) (15) of the New York City Charter declared constitutional.

Hancock, Jr., J.

(dissenting). A compelling theme has persisted in New York jurisprudence from colonial times. It reflects the deeply rooted concern in our State for safeguarding expression-related freedoms. The wording of the State Constitution, we have noted, is more expansive than the First Amendment of the United States Constitution (see, O’Neill v Oakgrove Constr., 71 NY2d 521, 528-529, and at 531 [Kaye, J., concurring]) and we have maintained a consistent tradition of providing the broadest possible protection of such freedoms, "often broader than the minimum required by the First Amendment” (O’Neill v Oakgrove Constr., supra, at 529, n 3; see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557-558). Today, however, in a seeming break with this constant theme, the court applies a narrow interpretation of article I, §§ 1, 8 and 9 of our State Constitution — one which appears to afford decidedly less protection to expressional and associational freedoms than the First Amendment.

It upholds a Charter provision which cuts sharply into two liberties which are clearly protected under the First Amendment and which, under our established New York tradition, should be entitled to the same, if not greater, protection under article I, §§ 1, 8 and 9: (1) the freedom of association of political parties and their adherents; and (2) the expressional and associational rights of candidates for political office and of the voters who might support and vote for them (see, e.g., Illinois Elections Bd. v Socialist Workers Party, 440 US 173, 184; Bullock v Carter, 405 US 134, 142-144; see also, Clements v Fashing, 457 US 957, 986, n 8 [Brennan, J., dissenting]). And the court reaches its conclusion by avoiding the application of any level of scrutiny — strict or otherwise. It simply brushes aside as meaningless the serious invasion of plaintiffs’ freedoms of association and expression. No authority has been cited for the propositions that an invasion of a political party’s freedoms of this magnitude can properly be ignored as creating no impairment of constitutional rights (majority opn, at 628) or that a provision restricting the pool of available candidates and party leaders can in some way "broaden” participation in government, rather than "restrict[ ] associational or expressional freedoms.” (Majority opn, at 631.) As to the invasion of the rights of candidates and voters, the majority concedes that if protected rights are burdened, strict scrutiny must be applied (id.). Nevertheless, it seemingly concludes that strict scrutiny analysis is not required on the ground that whatever burden is imposed is "de minimis” and "justified by the important governmental interests underlying it” (id., at 630). To my knowledge, the court’s responses to these constitutional challenges have no support in analogous case law or in recognized authorities (see generally, Tribe, American Constitutional Law § 12-26, at 1010-1022 [2d ed]). For these reasons and others which follow, I dissent.

I

The parties to this lawsuit espouse decidedly different views on the necessity for section 2604 (b) (15) and the extent to which it serves governmental interests. Regardless of these differences, one thing is certain: if it constitutes a significant intrusion on the freedoms of expression and association guaranteed under our State Constitution, it cannot be upheld unless it is found to serve a compelling governmental interest under strict scrutiny (see, Eu v San Francisco Democratic Comm., 489 US 214, 222; majority opn, at 627-628).

A

There can be no question that political parties have a constitutional right to be free from governmental interference with their internal affairs. This fundamental right — which stems from the parties’ constitutionally protected freedom of association (see, Democratic Party v Wisconsin, 450 US 107, 122-124; Kusper v Pontikes, 414 US 51, 56-58; Tribe, American Constitutional Law, at 790-791 [2d ed 1988]) — includes the freedom of a political party to choose its own leaders (see, Eu v San Francisco Democratic Comm., 489 US, at 223-229, supra) and select its own candidates (Tashjian v Republican Party, 479 US 208, 214-217). In Eu v San Francisco Democratic Comm. (supra, at 224), Justice Thurgood Marshall summarized the principle in these words: "It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. [Citations omitted.] Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, [citations omitted], but also that a political party has a right to ' "identify the people who constitute the association,” ’ [citations omitted], and to select a 'standard bearer who best represents the party’s ideologies and preferences.’ ”

Section 2604 (b) (15) prohibits any party member who happens to hold one of several important party positions from serving in elective political office. Unquestionably, this prohibition infringes on the rights of political parties and their adherents to select and elect candidates of their choice to positions in city government (see, Tashjian v Republican Party, supra, at 214-217). Nor can it be doubted that section 2604 (b) (15), by precluding elected officers and virtually all important appointed officials from holding any one of several significant party positions (e.g., county leader, officer of the county committee, national or State committeemen), abridges the associational rights of parties concerning "decisions about the identity of * * * [their] leaders.” (See, Eu v San Francisco Democratic Comm., supra, at 229.)

The majority holds, nevertheless, that because the provision only prohibits elected officials and certain important appointed officers from holding significant party positions — and does not expressly speak to any limitations on the party itself — there is no burden on the party’s associational rights (see, majority opn, at 628-630). The argument elevates form over substance, for the effect is the same whether the prohibition results from a measure which prevents elected and appointed officials from holding party office or whether it prevents the party from choosing these officials for party positions. Moreover, the contention squarely contradicts established authority to the effect that indirect restrictions may effect associational freedoms and require strict scrutiny analysis in the same way as restrictions which are direct (see, Elrod v Burns, 427 US 347; Buckley v Valeo, 424 US 1, 64-65). Indeed, as Justice Brennan stated in Elrod (supra, at 362): "It is firmly established that a significant impairment of First Amendment rights must survive exacting scrutiny. Buckley v. Valeo, 424 U. S., at 64-65; NAACP v. Alabama, 356 U. S. 449, 460-461 (1958). 'This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct. * * *’ Buckley v. Valeo, supra, at 65. Thus encroachment 'cannot be justified upon a mere showing of a legitimate state interest.’ Kusper v. Pontikes, 414 U. S., at 58. The interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest.” (Emphasis added.)

In my opinion, section 2604 (b) (15) necessarily constitutes a serious impairment of the constitutional freedoms of political parties. The challenged provision does not merely involve the government’s broad power to regulate the time, place and manner of elections. This provision clearly diminishes the pool of persons available to the party from which it may choose its representatives. Can there be any measure which encroaches more directly on the core freedom of a political party than one which restricts — on the basis of the candidate’s activities within the party — a political party’s power to perform the primary function for which it exists: the selection, nomination and election of persons who, in its opinion, are best suited to represent the party as candidates? And can any measure more surely curtail the autonomy of a political association than one which forces it to choose between using its talented advocates to direct its own affairs and using them to carry out its policies and public objectives as candidates for political office? But, regardless of how it is viewed, the debasement of these constitutional prerogatives of political parties is unquestionably significant. That being so, there is no way — consistent with established precedent (see, e.g., Elrod v Burns, supra)— that section 2604 (b) (15) can be upheld except by holding that it passes strict scrutiny.

Nor can it be an acceptable answer to the complaint of the political parties that section 2604 (b) (15) markedly reduces their freedom to select candidates and leaders to say to them that they need not be concerned because the section "simply puts high officials in public parties to a choice: whether to retain their high public office and abstain from holding political party positions or the converse.” (Amici brief, at 21 [emphasis added]; see, majority opn, at 629.) Defendants’ proposition, apparently, is that such a deprivation is of no consequence because nothing prevents a party from nominating a candidate who has been a high party official in the past or prevents it from choosing as one of its top party leaders someone who formerly held an elective or important appointed city position.

In short, the argument is that the section merely precludes a party from vesting the responsibilities of candidacy and high party office in the same person at the same time. But the argument overlooks a key point: the very person who the party believes is best suited to carry its standard as a candidate may be one of its prominent party leaders and the party’s interest may be best served by having this chosen candidate retain the party position. It is precisely this right of the political party to make such a choice — regardless of its wisdom — which the constitutional freedom of association guarantees (see, Eu v San Francisco Democratic Comm., supra, at 222-223; Tashjian v Republican Party, supra, at 214; Cousins v Wigoda, 419 US 477, 487). Section 2604 (b) (15) denies to the parties the right to do so.

Not surprisingly, no case has been cited for the proposition that a standard of review less than strict scrutiny should be applied to curtailments of associational freedoms of political parties of the type in question here. Moreover, to my knowledge, no court has upheld comparable restrictions under any standard. There is, however, substantial authority to the contrary. In Eu v San Francisco Democratic Comm. (supra), for example, the Supreme Court, applying strict scrutiny, invalidated various provisions of the California Election Code as violative of the basic rights of political parties to choose their own candidates and leaders. The court stated (supra, at 230): "By requiring parties to establish official governing bodies at the county level, California prevents the political parties from governing themselves with the structure they think best. And by specifying who shall be the members of the parties’ official governing bodies, California interferes with the parties’ choice of leaders. A party might decide, for example, that it will be more effective if a greater number of its official leaders are local activists rather than Washington-based elected officials. The Code prevents such a change.” (Emphasis added; see also, Tashjian v Republican Party, supra, at 214-217; Geary v Renne, 911 F2d 280 [9th Cir 1990].) Indeed, 80 years ago, our Court, in Matter of Callahan (200 NY 59), recognizing the fundamental principle that a party "has the right to choose whom it will for its candidate for office and to appeal to the whole electorate for votes in his behalf’ (id., at 61), invalidated a statute which curtailed that right (see also, Matter of Hopper v Britt, 204 NY 524, 530-532).

Defendants’ reliance on Civil Serv. Commn. v Letter Carriers (413 US 548) is misplaced. Far from holding that the limitations on Federal employees’ First Amendment rights imposed by the Hatch Act should be tested under a "rational basis” test, the court there found the aim of keeping Federal executive employees separate from partisan politics to be "in the best interest of the country, indeed essential” (413 US, at 557) and the court traced the history of the separation principle through the centuries (id., at 557-559). Unlike the asserted governmental interest here in preventing corruption by political and public officials, Letter Carriers — as this Court has previously recognized — involved the government’s interest as an employer in ensuring the stability and efficiency of its civil service arm (see, Evans v Carey, 40 NY2d 1008, 1009; see also, Matter of Curie v Ward, 46 NY2d 1046, 1052-1053 [Wachtler, J., dissenting]). Moreover, as Justice Brennan later explained in Elrod v Burns (427 US 347, supra): Letter Carriers upheld Hatch Act restraints "sacrificing political campaigning and management, activities themselves protected by the First Amendment [because] it was the Court’s judgment that congressional subordination of those activities was permissible to safeguard the core interests of individual belief and association.” (Id., at 370-371 [emphasis supplied].) Unlike Letter Carriers, here the infringement of plaintiffs’ associational rights cannot be said to be counterbalanced by any offsetting infringement of fundamental rights of others.

It is true that minimal restrictions and limitations on the methods of organizing political parties and reasonable regulations as to the time, place and manner of selecting party candidates and leaders have been allowed (cf., Anderson v Celebrezze, 460 US 780 [Ohio’s candidacy early filing deadlines held unconstitutional]). But such measures have been upheld only because they served the purpose of assuring the fairness, stability and integrity of the process and, therefore, could be found to further compelling interests of the State under strict scrutiny (see, Eu v San Francisco Democratic Comm., supra, at 229-231; and see, e.g., Rosario v Rockefeller, 410 US 752 [sustaining New York Election Law provision requiring voter to enroll in party of choice at least 30 days before general election to vote in primary]; Marchioro v Chaney, 442 US 191 [restricting size and composition of State committee]).

In contrast to such cases, the regulation here is not established for the purpose of assuring the fairness, stability or integrity of the process of selecting candidates or party leaders (see, Eu v San Francisco Democratic Comm., supra, at 229-231; Storar v Brown, 415 US 724, 730-733; Tribe, American Constitutional Law § 13-22 [2d ed]). The very purpose of section 2604 (b) (15) is to regulate who the candidates and party leaders should be, not how they should be chosen. The theory of the legislation is simply this: that corruption and conflicts of interest will be prevented by curtailing the parties’ rights to choose their candidates and leaders through a measure which makes it impossible for them to nominate any of their leaders for elective office or to select for one of their party leadership positions any elected officer or prominent appointed city official.

Cases such as Matter of Rosenstock v Scaringe (40 NY2d 563) and Clements v Fashing (457 US 957, supra) are not on point. They do not involve complaints brought by political parties for alleged violations of their associational rights to be free from governmental control (see, e.g., Cousins v Wigoda, supra, at 487; Buckley v Valeo, 424 US 1, 15, supra). Rather, these cases involve complaints brought by individuals, as in Rosenstock (supra), where a challenge was brought against a statute, on equal protection grounds, because it restricted a person’s right to serve on a board of education. And in Clements — an action brought by officeholders challenging restrictions on the right to seek election to other offices during incumbents’ current terms — the court, in upholding the restrictions, specifically noted that the provisions did not preclude the plaintiffs from holding offices in a political party (Clements v Fashing, supra, at 972). Thus, contrary to the majority view (majority opn, at 628), section 2604 (b) (15) abrogates fundamental rights of association of political parties guaranteed by the State Constitution (art I, §§ 8, 9) and must, therefore, be tested under strict scrutiny (see, Eu v San Francisco Democratic Comm., supra, at 229-231; Tashjian v Republican Party, supra, at 217; Elrod v Burns, supra, at 362; see generally, Berdon, The Constitutional Right of the Political Party to Chart Its Own Course: Defining Its Membership Without State Interference, 22 Suffolk U L Rev 933, 940).

B

In addition to the effect on parties’ fundamental associational rights, the challenged provision limits voters’ choices and, thus, curtails their opportunity to assert their preferences " 'through candidates or parties or both’ ” (Illinois Elections Bd. v Socialist Workers Party, 440 US 173, 184, supra [quoting Lubin v Panish, 415 US 709, 716]). As Justice Marshall emphasized in Illinois Elections Bd. (supra, at 184), by "limiting the choices available to voters, the [government] impairs the voters’ ability to express their political preferences. And for reasons too self-evident to warrant amplification here, * * * voting is of the most fundamental significance under our constitutional structure.” (See also, Tashjian v Republican Party, supra, at 215 [" ' "Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents” ’ ”]; Clements v Fashing, 457 US 957, 986, supra [Brennan, J., dissenting] ["the Court has clearly recognized that restrictions on candidacy impinge on First Amendment rights”].) Again, it is no answer to say that the challenged provision expressly affects only candidate requirements. "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation” (Bullock v Carter, 405 US 134, 143, supra).

The voters’ rights here arise not only from article I, §§ 8 and 9 of the State Constitution which safeguard freedoms which would otherwise be protected by the First Amendment (see, supra, at 631-632), but also from article I, § 1 which expressly provides that no "member of this state shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land.” From early in our history, the Court has noted that in regulating enfranchisement, the Legislature must do so "subject to and, presumably, in furtherance of the constitutional right and its enactment are to be construed in the broadest spirit of securing to all citizens * * * the right to freely to cast their ballots” (People ex rel. Goring v President & Bd. of Trustees, 144 NY 616, 620-621 [1895]; see, Matter of Crane v Voorhis, 257 NY 298,301 [1931] [the purpose of the Constitution is that " 'all voters shall, so far as the law provides, have equal, easy and unrestricted opportunities to declare their choice for each office’ ”]; Matter of Callaghan v Voorhis, 252 NY 14, 17-18 [1929] [the same]; see also, Green v Shumway, 39 NY 418, 426-427 [1868]).

In sum the undeniable effect of section 2604 (b) (15) is that registered party voters are deprived of their rights (1) to select seven categories of party officials as elected city officers and (2) to choose specified officials as their party leaders. Because section 2604 (b) (15) implicates fundamental rights under article I, §§ 1, 8 and 9 of the State Constitution, the provision must pass strict scrutiny.

II

Defendants contend, however, that even if section 2604 (b) (15) is scrutinized strictly, it should be upheld as serving compelling governmental interests. Without hesitation, they proclaim that in "light of the corruption uncovered in the past five years in New York City it would seem obvious that * * * section 2604(b)(15) furthers compelling governmental interest” (appellant’s reply brief, at 11 [emphasis added]). In a similar vein, amici, under the rubric "Impetus for Ethical Reform” (amici brief, at 12), cite the "constant flow of bribes, PVB contracts and accompanying kickbacks” during the regime of Donald Manes, Borough President of Queens.

From this and the testimony of the sponsors of the legislation (amici brief, at 4-9), it is evident that the purpose of section 2604 (b) (15) is to prevent the corruption which has occurred in the past from occurring again; and the assumption underlying that purpose is that because some politicians have been corrupt in the past, it is likely that some will be corrupt in the future. Whether this premise is based on a proper appraisal of the level of honesty that the city may rightfully expect from its future public officeholders and politicians or one that tends unfairly to stigmatize all politicians as "suspect” because of the past sins of some is not the question. The question is whether this premise is a sufficient justification for the substantial intrusion into the rights of political parties, candidates and voters which section 2604 (b) (15) inflicts.

While some will say, perhaps, that it is unrealistic, even naive to think it, I firmly believe that most public and party officials remain true to their public trust and their oaths of office. Until now, the instruments for rooting out and preventing corruption in public and political office have been found in the polling places, in State and Federal prosecutors’ offices and in the newsrooms of newspapers and television and radio stations. Of course, I recognize the possibility that conflicting interests may tend to effect City officials in performing their public function when such officials maintain strong ties to their parties. To be sure, such officials are obligated to adhere to their oaths of office in face of many other potentially conflicting demands and interests.

The same possibility for conflict may be said to exist in the positions of majority and minority leaders of the Assembly and Senate, positions that are formally recognized by statute and vested with special prerogatives (see, Legislative Law §§ 6, 7). Similarly, at least a potential for conflict is present in the position of Board of Elections member which is constitutionally required to be based upon party representation (NY Const, art II, § 8). Indeed, in the same sense, a potential for conflict is inherent in the very system of electing governmental officials through the partisan political process, for elected officials have an allegiance both to their party and to their constituents. But recognition of the fact that some conflict inheres in the partisan political system does not mean that the system cannot serve the public honestly and effectively; it certainly does not justify the stringent restraints imposed by section 2604 (b) (15) on political parties in fulfilling their important roles in the governmental process.

This statute, which is premised on the notion that major party leaders are not to be trusted to hold high political office, can by no means be viewed as one which is narrowly tailored to accomplish the intended result of preventing corruption (compare, Buckley v Valeo, 424 US 1, 25, 44-48, supra [governmental interest in preventing corruption and the appearance of corruption inadequate to justify certain dollar expenditure limitations]; Dunn v Blumstein, 405 US 330, 353 [waiting period as prerequisite to vote "is not the least restrictive means necessary for preventing fraud”]; see generally, Note, Local Nonpartisan Elections, Political Parties and the First Amendment, 87 Colum L Rev 1677, 1698-1699 [discussing prevention of corruption as insufficient justification for restrictions on political party campaigning in nonpartisan schemes]). Manifestly, means far less drastic than truncating a party’s right to choose its candidates and leaders (in addition to the means already mentioned) are available to further the aim of preventing corruption — for example, Public Officers Law § 73-a (requiring full financial disclosure from high ranking elected and appointed officials) and Public Officers Law § 87 (providing for free access to governmental records).

Corruption in political and public office — as in other segments of our society — unfortunately does exist. It cannot be tolerated and, to be sure, all lawful steps to stop it are required. But it is far better, and unquestionably less harmful, to rely on an alert citizenry, diligent prosecutors and resourceful reporters to combat corruption — in ways which are consistent with our democratic process — than to resort to legislation that strikes at the very heart of the associational freedoms on which the process is based.

I would affirm Supreme Court’s judgment striking down section 2604 (b) (15) as violative of the State Constitution.

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

Judgment reversed, etc.

      . Section 2604 (b) (15) states:
      "Prohibited Conduct
      * ** *
      "No elected official, deputy mayor, deputy to a citywide or boroughwide elected official, head of any agency, or other public servant who is charged with substantial policy discretion as defined by rule of the board may be a member of the national or state committee of a political party, serve as an assembly district leader of a political party or serve as the chair or as an officer of the county committee or county executive committee of a political party, except that a member of the council may serve as an assembly district leader or hold any lesser political office as defined by rule of the board.”

        . Although plaintiffs rest their case solely on State grounds, they have not distinguished the State constitutional provisions from their Federal counterparts nor have they attempted to demonstrate how the State provisions, either singly or in combination, establish any more or greater rights than those guaranteed to the citizens of New York by the Federal Constitution (see, People v P. J. Video, 68 NY2d 296, 301-303; see also, People v Alvarez, 70 NY2d 375, 378-379). They argue only that fundamental rights guaranteed them by the State Constitution have been impaired and seek to persuade the Court that section 2604 (b) (15) cannot survive strict scrutiny. Paradoxically, in doing so plaintiffs deny the applicability of the few available State precedents and rely principally on Federal law.

      . The dissent charges the majority, inaccurately, with applying "a standard of review less than strict scrutiny” to test whether section 2604 (b) (15) violates the individual plaintiffs’ speech and associational rights (dissenting opn, at 637; see also, at 634-635, n 5). However, standards of review are applied only to provisions which impair constitutionally protected rights (see, Elrod v Burns, 427 US 347, 362; Eu v San Francisco Democratic Comm., 489 US 214, 222; Tashjian v Republican Party, 479 US 208, 214; Anderson v Celebrezze, 460 US 780, 789). Since there is no significant impairment of plaintiffs’ speech and associational rights in this case, there is no need to engage in an examination of whether section 2604 (b) (15) withstands strict scrutiny analysis (see, dissenting opn, at 632, 641, n 8).

      . "This State has long provided one of the most hospitable climates for the free exchange of ideas. The tradition existed in colonial times, as is exemplified by the acquittal in 1735 of John Peter Zenger” (Matter of Beach v Shanley, 62 NY2d 241, 255 [Wachtler, J., concurring]).

      . As we noted in O’Neill v Oakgrove Constr. (71 NY2d 521, 529, n 3) "Article I, § 8 of the Constitution assures, in affirmative terms, the right of our citizens to 'freely speak, write and publish’ and prohibits the use of official authority which acts to 'restrain or abridge the liberty of speech or of the press.’ ”

      . Moreover, neither defendants nor amici advance the argument adopted by the majority that the political rights of the parties are not in any way burdened or that the candidates’ and voters’ challenges can be dismissed by simply identifying a governmental interest. Instead, defendants and amici assert that a rational basis test — rather than strict scrutiny — is applicable (see, appellant City’s brief, at 17-29; amici brief, at 31-35).

      . In Cousins v Wigoda (419 US 477, 487-488), Justice William Brennan explained the constitutionally protected right of political association in this way: " 'There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group activity” protected by the First and Fourteenth Amendments. * * * The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.’ Kusper v. Pontikes, 414 U. S. 51, 56-57 (1973). 'And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.’ Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Moreover, '[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.’ Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957)”. (See also, Berdon, The Constitutional Right of the Political Party to Chart Its Own Course: Defining Its Membership Without State Interference, 22 Suffolk U L Rev 933, 940 [because this associational freedom "is inseparable from at least the fundamental rights of speech and assembly, it is also a fundamental constitutional right”].)

      . The freedom of association of political parties is deeply embedded in the constitutional law of our State (see, NY Const, art I, §8 [freedom of speech and press]; art I, § 9 [right to assembly and petition]; see also, Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597, 607 ["the rights of political expression and association are at the heart of the First Amendment”]). Professor Lawrence Tribe has noted that the associational right is "among the preferred rights derived by implication from First Amendment’s guarantees of speech, press, petition and assembly” (Tribe, American Constitutional Law § 12-26, at 1010 [2d ed 1988]; see also, Starr, The Legal Status of American Political Parties, I, 34 American Political Science Review 439, 442-444 [June 1940] [referring specifically to the rights of free speech and to petition and assembly guaranteed in article I, §§ 8, 9 of the New York State Constitution]). As long ago as 1910, our court recognized the rights of political parties to be free from governmental interference (see, Matter of Callahan, 200 NY 59, 60-61 [invalidating restriction on nominating committee’s right to nominate the candidate of its choice]; see also, Matter of Hopper v Britt, 204 NY 524, 530-532). Moreover, our State Constitution (unlike the Federal Constitution) expressly recognizes the role of political parties in our system of democratic government (see, NY Const, art I, § 1; art II, § 8; see, Starr, op. cit., at 442-443 [the "mere mention of political parties in the State Constitution * * * is probably sufficient to establish them on a firm footing in constitutional law, and to give them a constitutional right to exist”]).

      . For example, under section 2604 (b) (15), neither the State nor the national party may choose the Mayor of the City of New York to serve in the important policy-making role of member of the State or national committee, even though it may be in the best interest not only of the party but of the City, State and Nation that the Mayor serve in such position.

      . The majority’s reliance on Clements v Fashing (457 US 957) for the proposition that "even broader restraints [than those imposed on judicial officers] would be permissible for elected officeholders, presumably because of their greater powers and responsibilities” (majority opn, at 630) is misplaced. In Clements, the court, in upholding restrictions barring judicial officers from seeking elective office noted the distinction between the duties of Judges and legislators and the extent to which they are prohibited by the nature of their respective offices from making politically motivated decisions. In contrast to Judges who are precluded from making decisions for political reasons, the court noted that "it is to be expected that a legislator will vote with due regard to the views of his constituents” (id., at 968; see, id., at 971).

      . Nowhere in the majority opinion is it claimed that the section will survive a strict scrutiny analysis. Indeed, as noted (see, supra, at 633, n 3), the majority takes a position not advanced by defendants or amici: i.e., that no scrutiny of any kind is required.