author: Simons, J. Titone, J. Kaye, J.

text:
    In the Matter of Town of Islip, Respondent, v Frank Caviglia et al., Doing Business as Happy Hour Bookstore, Appellants.
    Argued February 14, 1989;
    decided May 11, 1989

      POINTS OF COUNSEL

      Bernard Fromartz for appellants.
    I. The statute fails for vagueness. (People v Illardo, 48 NY2d 408; Papachristou v City of Jacksonville, 405 US 156; Plaza Health Clubs v City of New York, 76 AD2d 509; Basiardanes v City of Galveston, 682 F2d 1203; Miller v California, 413 US 15; People v Nelson, 69 NY2d 302; People v Smith, 44 NY2d 613; People v McGrath, 135 AD2d 60, 71 NY2d 1030; Grayned v City of Rockford, 408 US 104; Young v American Mini Theatres, 427 US 50; Renton v Playtime Theatres, 475 US 41.) II. The statute is overbroad. (People v Dupont, 107 AD2d 247; Thornhill v Alabama, 310 US 88; Miller v California, 413 US 15; Winters v New York, 333 US 507; Roth v United States, 354 US 476; Kingsley Pictures Corp. v Regents, 360 US 684; Young v American Mini Theatres, 427 US 50; Cohen v California, 403 US 15; People ex rel. Arcara v Cloud Books, 68 NY2d 553.) III. The ordinance constitutes prior restraint. (People v P. J. Video, 68 NY2d 296; People ex rel. Arcara v Cloud Books, 68 NY2d 553; People v Richmond County News, 9 NY2d 578; Freedman v Maryland, 380 US 51.) IV. The Islip statute is not content-neutral and violates free speech laws. (Young v American Mini Theatres,
      427 US 50; Renton v Playtime Theatres, 475 US 41; People v P. J. Video, 68 NY2d 296; People ex rel. Arcara v Cloud Books, 68 NY2d 553; Miller v California, 413 US 15; Erznoznik v City of Jacksonville, 422 US 205; Schad v Mount Ephraim, 452 US 61; Southeastern Promotions v Conrad, 420 US 546; Christy v City of Ann Arbor, 824 F2d 489.) V. The power to zone may not overwhelm the guarantees of the Bill of Rights and cannot be amortized. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Ilasi v City of Long Beach, 38 NY2d 383; Lutheran Church in Am. v City of New York, 35 NY2d 121; Incorporated Vil. of Old Wesibury v Alljay Farms, 100 AD2d 574, 64 NY2d 798; Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278; Incorporated Vil. of Williston Park v 280 Hillside Ave. Rest. Corp., 55 AD2d 927; Modjeska Sign Studios v Berle, 43 NY2d 468; Matter of Suffolk Outdoor Adv. Co. v Town of Southampton, 60 NY2d 70; Suffolk Outdoor Adv. v Hulse, 43 NY2d 483; Basiardanes v City of Galveston, 682 F2d 1203.) VI. The ordinance violates equal protection. (Purple Onion v Jackson, 511 F Supp 1207; Nortown Theatre v Gribbs, 373 F Supp 363; Miller v California, 413 US 15; People v P. J. Video, 65 NY2d 566; Matter of Werner v Middle Country Cent. School Dist., 89 AD2d 967; Allen v Town of N. Hempstead, 121 Misc 2d 795, 103 AD2d 104; Matter of Abrams v Bronstein, 33 NY2d 488; Matter of Patricia A. v City of New York, 31 NY2d 83.) VII. The New York Constitution governs in this case, not Federal constitutional law. (People v P. J. Video, 68 NY2d 296; Bellanca v New York State Liq. Auth., 54 NY2d 228; Matter of Beach v Shanley, 62 NY2d 241; People ex rel. Arcara v Cloud Books, 68 NY2d 553; Matter of von Wiegen, 63 NY2d 163; Roth v United States, 354 US 476; Dumas v City of Dallas, 648 F Supp 1061; People v Richmond County News, 9 NY2d 578.) VIII. There was no appeal made from Judge Balletta’s order striking respondents’ claim that the ordinance should fail for vagueness. (Bray v Cox, 38 NY2d 350.)

      Robert J. Cimino, Town Attorney, and Doris E. Roth for respondent.
    I. The ordinance is constitutional under the United States Constitution. (Renton v Playtime Theatres, 475 US 41; Young v American Mini Theatres, 427 US 50; Thames Enters. v City of St. Louis, 851 F2d 199; Basiardanes v City of Galveston, 682 F2d 1203; Christy v City of Ann Arbor, 824 F2d 489; North St. Book Shoppe v Village of Endicott, 582 F Supp 1428; Purple Onion v Jackson, 511 F Supp 1207; United States v O’Brien, 391 US 367; Hart Book Stores v Edmisten, 612 F2d 821.) II. The ordinance is constitutional under the New York State Constitution. (People ex rel. Arcara v Cloud Books, 68 NY2d 553, 478 US 697; People v P. J. Video, 68 NY2d 296; Illinois v Gates, 462 US 213; Bellanca v New York State Liq. Auth., 54 NY2d 228.) III. There are no issues of vagueness, overbreadth and prior restraint. (People v Nelson, 69 NY2d 302; People v Smith, 44 NY2d 613; Young v American Mini Theatres, 427 US 50; Basiardanes v City of Galveston, 682 F2d 1203; Schad v Mount Ephraim, 452 US 61; Renton v Playtime Theatres, 475 US 41.) IV. The amortization provisions are constitutional. (Modjeska Sign Studios v Berle, 43 NY2d 468, 439 US 809; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 439 US 808; Matter of Suffolk Outdoor Adv. Co. v Town of Southampton, 60 NY2d 70, 61 NY2d 670; SDJ, Inc. v City of Houston, 636 F Supp 1359, 837 F2d 1268; Dumas v City of Dallas, 648 F Supp 1061, 837 F2d 1298; Hart Book Stores v Edmisten, 612 F2d 821; Lydo Enters. v City of Las Vegas, 745 F2d 1211.)
   OPINION OF THE COURT

Simons, J.

Petitioner, Town of Islip, seeks to enjoin respondents from continuing operation of an adult bookstore in a prohibited zone in violation of the Town’s zoning ordinance. The ordinance differentiates between certain "adult” uses, i.e., bookstores, theaters, motels, cabarets and massage parlors which exclude minors by reason of age and those which do not, and limits the operation of adult uses to areas zoned Industrial I. It also provides that nonconforming adult uses shall be amortized over a period of years based on a graduated scale of investment in the business. The principal issue presented is whether the ordinance constitutes an impermissible limitation of respondents’ constitutional free speech rights.

In a thoughtful and comprehensive opinion by Justice Arthur Spatt the Appellate Division, Second Department, held that the portion of the ordinance that restricted adult uses to the Industrial I zone was a valid exercise of the Town’s zoning power because it restricted only the time, place and manner of respondents’ rights, that it was neither vague nor overbroad and that it provided a lawful means of amortizing nonconforming uses before excluding them from Business I districts. The court invalidated and severed a provision of the ordinance, however, which required adult uses to obtain a special permit before locating in an industrial zone. The Town has not appealed from that portion of the order and thus the issue before us is whether the ordinance as approved by the Appellate Division is constitutionally valid under the Federal and State Constitutions.

I

The Town of Islip is located on the south shore of Suffolk County on Long Island. It consists of 92 square miles of territory and has a population of about 300,000 persons. There are four villages and several hamlets in the Town, each with its own downtown district. In the 1970’s, the Town was faced with an unregulated proliferation of adult uses in these downtown districts and its officials, with the help of professional planners, undertook a detailed study of their effects on the surrounding community. Thereafter, a written report was prepared for the Town, the "Study & Recommendation for Adult Entertainment Businesses” (Report), which indicated the nature of the governmental interest to be protected, i.e., the stability and revitalization of the neighborhoods, and also the harm that adult businesses posed to that interest. It demonstrated, by analysis of each adult entertainment business, the harmful effect of these uses on the surrounding area, and how those effects could be mitigated by relocating the businesses. The study was prepared following the United States Supreme Court’s decision in Young v American Mini Theatres (427 US 50, reh denied 429 US 873) and, consistent with that decision, it recognized the First Amendment concerns involved and sought to accommodate the rights of proprietors with the legitimate goals of sound planning and land use regulation.

Based upon this study, the Town formulated its first written comprehensive plan of community development focusing on revitalizing downtown business areas and reaffirming the identities of its various villages and hamlets. On September 23, 1980, pursuant to the plan, it adopted the adult use ordinance now under consideration. The ordinance attempts to phase out and relocate existing adult uses through a schedule of amortization based upon the user’s investment in the business and to control future adult uses by limiting their establishment to Industrial I districts.

Respondent Caviglia has operated the Happy Hour Bookstore in the heart of the downtown district of the Village of Bay Shore since June 12, 1980 on property he owns with respondent Weinkselbaum. Until 1985 an adult theater was located next to it. The store excludes minors by reason of age and therefore is an adult bookstore within the definition of the ordinance. It is a nonconforming use located in a Business I district but its authorized amortization period has expired and accordingly, petitioner sought to enjoin the store’s operation. Respondents opposed the injunction contending that the ordinance violated their rights under the First Amendment of the United States Constitution and article I, § 8 of the State Constitution. Petitioner moved for a preliminary injunction and both parties moved for summary judgment. Supreme Court denied the motion for a preliminary injunction and both motions for summary judgment. Further, it struck the vagueness defense, determining that respondents lacked standing to challenge the ordinance on vagueness grounds because the ordinance concededly applied to them and they could not assert that claim on behalf of third parties. In 1987 the parties entered into an agreed statement of facts and submitted the matter to Supreme Court for final determination. The court upheld the constitutionality of the ordinance and granted the Town a permanent injunction. It also upheld the amortization provisions of the ordinance and declined to address the vagueness issue, finding that the prior determination of the court was the law of the case. On appeal the Appellate Division modified the judgment by striking the provisions of the ordinance which required proprietors to obtain a special permit before establishing an adult use in an Industrial I district and otherwise affirmed.

II

Analysis starts with a recognition of the broad power of municipalities to implement land use controls to meet the increasing encroachments of urbanization on the quality of life (see generally, Euclid v Ambler Realty Co., 272 US 365; Asian Ams. for Equality v Koch, 72 NY2d 121; Matter of Harbison v City of Buffalo, 4 NY2d 553). These restrictions on the use of real property rest upon and are justified as a proper exercise of the police power to advance the public health, safety and welfare (Berman v Parker, 348 US 26, 32; Udell v Haas, 21 NY2d 463, 469-470). Because zoning ordinances are legislative acts they enjoy a strong presumption of constitutionality and if there is a reasonable relation between the end sought to be achieved and the means adopted to achieve it the regulation will be upheld (Asian Ams. for Equality v Koch, supra, at 132; McMinn v Town of Oyster Bay, 66 NY2d 544, 549; Shepard v Village of Skaneateles, 300 NY 115, 118). If the issue is "fairly debatable”, the legislative judgment on the necessity for such regulation is to be respected by the courts (Euclid v Ambler Realty Co., supra, at 388; see also, Asian Ams. for Equality v Koch, supra, at 131-132; Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178, 186, rearg denied 34 NY2d 668).

Undeniably, the purpose of preventing the deterioration of neighborhoods, including downtown business districts, comes well within the confines of the public welfare that defines the limits of the police power (see, Berman v Parker, 348 US 26, 32-33, supra; see also, 1 Anderson, New York Zoning Law and Practice § 9.27, at 442 [3d ed]). Moreover, planning studies have established that adult bookstores and other adult entertainment facilities are generally injurious to the maintenance and development of healthy commercial and residential areas (see, Toner, Regulating Sex Businesses, American Society of Planning Officials Planning Advisory Service Rep. No. 327 [19]; Interim Report, Boston Redevelopment Authority, Entertainment District Study [Apr. 1974]; see also, Young v American Mini Theatres, 427 US 50, 54-55, supra, relying on District Court’s findings, at 373 F Supp 363, 365; Northend Cinema v City of Seattle, 90 Wash 2d 709, 711-712, 585 P2d 1153, cert denied sub nom. Apple Theatre v City of Seattle, 441 US 946). Accordingly, many municipalities have attempted to control such uses, either by aggregating them (e.g., Renton v Playtime Theatres, 475 US 41) or dispersing them (e.g., Young v American Mini Theatres, supra).

When the municipality’s zoning power is used to regulate bookstores or theaters operating lawfully, however, a First Amendment dimension is added (see, Young v American Mini Theatres, supra; Smith v California, 361 US 147, reh denied 361 US 950). Regulation must not be aimed at suppressing the content of the material shown or sold (Renton v Playtime Theatres, supra, at 47-48; Young v American Mini Theatres, supra, at 67, 71, n 34 [plurality opn]; id., at 79-80, 81, n 4 [Powell, J., concurring]). Notwithstanding this broad injunction against suppressing speech, the Supreme Court has sustained zoning ordinances regulating adult uses, holding that under the Federal Constitution they were not content-based restrictions on expression. The rule, as formulated by the Renton court, permits municipalities to regulate such uses through the zoning power if they can establish that (1) the "predominant purpose” of the ordinance is not to control the content of the material purveyed but to control the "secondary effects” of such uses on the surrounding community, (2) the ordinance is designed to serve a substantial governmental interest, (3) it is narrowly tailored to affect only the category of uses that produce the unwanted effects and (4) it allows for reasonable alternative avenues of expression (see, Renton v Playtime Theatres, supra; see also, Young v American Mini Theaters, supra; cf., Schad v Mount Ephraim, 452 US 61; Erznoznik v City of Jacksonville, 422 US 205; see generally, 3 Rotunda-Nowak-Young, Constitutional Law, Substance and Procedure § 20.47 [a], [e]).

Petitioner’s ordinance meets Federal constitutional requirements under the Renton test. The "predominant purpose” of the Islip officials in enacting their ordinance was to eliminate the secondary effects of adult uses and to attempt to control future development in the business districts, not to regulate expression. The ordinance was prepared after thorough study of the community by professional planners and municipal officials. The Report on which it was based recognized the competing concerns in its first paragraph when it stated that: "This report studies the effects of adult entertainment or sex businesses on surrounding uses, both residential and commercial. * * * Materials or entertainment opportunities offered at these businesses are not a concern of this report.” The research and data underlying the Report supported its conclusion that the presence of such uses had a deleterious effect on the quality of life in the communities of the Town and the ordinance which followed was adopted in conjunction with a comprehensive plan for the development of the Town as a whole. Moreover, in the Bay Shore area, where respondents’ store is located, the ordinance was part of a plan for downtown renewal which involved the investment of over seven million dollars.

Contrary to assertions by the dissent (see, dissenting opn, at 567-568), the Town’s ordinance was predicated on its own study as well as the studies of ordinances prepared by other municipalities. As it related to respondents’ use, the study concluded that there was a "dead zone” in downtown Bay Shore caused, at least in part, by respondents’ store and the adjacent adult theater. Those uses, it found, adversely affected the traffic of customers in the area, resulting in a loss of business of nonadult entertainment stores, and, in the words of the Report, "delayed the upsurge” of downtown Bay Shore. Insofar as other adult uses were concerned, the ordinance did not require six of them (43%) to move and it rezoned some lands Industrial I to accommodate one adult bookstore at its existing location. These actions hardly indicate a purpose to suppress speech because of its content and support the Town’s submission that the predominant purposes underlying the regulations were legitimate zoning concerns (see generally, Yen, Judicial Review of the Zoning of Adult Entertainment: A Search for the Purposeful Suppression of Protected Speech, 12 Pepperdine L Rev 651; Note, Motivation Analysis in Light of Renton, 87 Colum L Rev 344).

The governmental interest supporting the ordinance is the eradication of the effects of urban blight and neighborhood deterioration and furtherance of the general underlying purpose of zoning, the enhancement of the quality of life for the Town’s residents. Studies relied on and prepared by the Town demonstrated that the location of adult businesses in certain areas heightened public apprehension about entering them, thus driving out traditional downtown businesses as customers avoided locations near adult bookstores, increased criminal activity and lowered nearby residential property values. To be sure, planning studies, by their nature, are not scientific nor their predictions certain but the Town was entitled to credit the evidence in its study of past deterioration and the prediction that, unless remedied, the deterioration would continue; it was not required to wait before acting until its business areas became wastelands. The study is more comprehensive than some (cf., e.g., Renton v Playtime Theatres, supra) and the Town’s conscientious effort to preserve the quality of its urban life is entitled to "high respect” (Young v American Mini Theatres, supra, at 71). To be weighed against this is the overriding concern of the First Amendment that there be full opportunity for the free exchange of ideas (Young v American Mini Theatres, 427 US 50, 64-65, supra; Police Dept. v Mosley, 408 US 92, 95, 98-99). The Town’s ordinance does not impose any limitation on the content of the material or the ability of the creators or sellers to distribute it and it does not restrict in any significant way those wishing to acquire adult books from doing so.

Similarly, we note that petitioner’s ordinance is narrowly tailored to affect only those uses shown to produce the unwanted secondary effects (cf., People ex rel. Arcara v Cloud Books, 68 NY2d 553, 558). Respondents fault the ordinance for failing to regulate all bookstores and theaters. The ordinance would be invalid, however, if the Town attempted to zone all theaters and bookstores to an Industrial I zone out of fear the ordinance would be judged content-based if it did otherwise (although it found only adult bookstores and theaters caused the unwanted secondary effects), because it would sweep more broadly than necessary to cure the proscribed evil (see, Hart Book Stores v Edmisten, 612 F2d 821, 830, cert denied 447 US 929).

Respondents also contend that the ordinance is suspect because it does not restrict other noxious uses, such as bars and pool halls, to Industrial I zones. The omission of those uses, if they exist in the Town’s Business I districts, is without legal significance on this record. As the parties seeking to invalidate a legislative enactment, respondents bore the burden of demonstrating that the failure to include other uses was constitutionally significant and they did not attempt to do so by trial, relying instead on stipulated facts which do not support their claim.

Finally, the ordinance meets the Supreme Court’s requirement that it provide alternative locations within the Town for adult use businesses (compare, Schad v Mount Ephraim, 452 US 61, 66, supra; Basiardanes v City of Galveston, 682 F2d 1203, 1213-1214; CLR Corp. v Henline, 702 F2d 637, 639, with Renton v Playtime Theatres, supra, at 54; Northend Cinema v City of Seattle, 90 Wash 2d 709, 717, 585 P2d 1153, supra; Cook County v Renaissance Arcade & Bookstore, 122 Ill 2d 123, 522 NE2d 73, 77-78, appeal dismissed sub nom. Mannheim Books v County of Cook, — US —, 109 S Ct 209). The stipulated facts reveal that the Town contains over 6,000 acres of land zoned Industrial I, including 85.6 miles of running frontage on open roads which are situated on lots over 500 feet from a church, park, playground or residential zone (cf., Basiardanes v City of Galveston, supra, at 1213-1214).

Petitioner presents a far stronger case for sustaining its ordinance than the case in which the City of Renton was successful. Petitioner’s ordinance does not suffer from the underinclusiveness of the Renton ordinance, which excluded massage parlors and adult bookstores, thereby suggesting to Justice Brennan in his dissent (Renton v Playtime Theatres, supra, at 57) that the municipality was not so much interested in controlling the secondary effects associated with adult businesses as it was with discriminating against certain uses because of content. Petitioner’s ordinance made all adult entertainment businesses causing adverse secondary effects subject to the zoning ordinance. Even more significantly, the City of Renton amended its zoning ordinance only after the lawsuit was brought. It conducted no independent studies to identify the harmful secondary effects of each business and establish their existence, as petitioner did, but relied solely on the experiences of other cities. Finally, in Renton, the Federal Court of Appeals made a finding that limiting adult theater uses to the zoned areas was a "substantial restriction on speech”, noting that the zones in which adult uses could operate were not available for immediate use (748 F2d 527, 534, supra). Here, under the stipulated facts it appears that there remains ample space available for adult uses. Respondents do not claim that if the ordinance is enforced the total number of adult bookstores will decline or that fewer potential customers will be able to conveniently patronize them (see, Note, City of Renton v Playtime Theatres, Inc: Court-Approved Censorship Through Zoning, 7 Pace L Rev 251, 279-287 [analyzing the particular weaknesses in the City of Renton’s case]).

ra

This determination does not end the inquiry, however, for respondents contend that even if petitioner’s ordinance is valid under Federal standards they are entitled to protections afforded by the New York Constitution. They rely primarily upon our holding in People ex rel. Arcara v Cloud Books (68 NY2d 553, supra).

Respondents’ claim rests on recognized principles of federalism. State courts are bound by Supreme Court decisions defining Federal constitutional rights but those rulings establish a minimum standard which State courts may surpass so long as their holdings do not conflict with Federal law. Thus, even though the ordinance before us meets Federal standards, under our Nation’s system of multiple sovereignties, New York may interpret its own Constitution to extend greater protection to its residents. A number of considerations are involved in determining whether it does so (see, People v P. J. Video, 68 NY2d 296, 302-303; see also, People v Alvarez, 70 NY2d 375, 378-379, supra). Foremost among those pertinent to this case is a recognition that freedom of expression in books, movies and the arts, generally, is one of those areas in which the Supreme Court has displayed great reluctance to expand Federal constitutional protections, holding instead that the subject is governed essentially by community standards (Miller v California, 413 US 15), and, as we have said before, New York has a long history and tradition of fostering freedom of- expression, often tolerating and supporting works which in other States would be found offensive to the community (People ex rel. Arcara v Cloud Books, 68 NY2d, supra, at 557; People v P. J. Video, supra, at 308-309). For the reasons that follow, however, we conclude that a municipality may, under the circumstances presented, restrict adult business uses to certain areas of the community without violating the State Constitution.

Preliminarily, the nature of the regulation must be examined.

Governmental action may restrict speech either intentionally or incidentally. Intentional restrictions are directed at the message conveyed, either its content or the time, place and manner in which it is disseminated. Generally speaking, if the regulation is content-based it is presumptively invalid and therefore subject to strict scrutiny. However, content-neutral restrictions, those justified without reference to the content of the regulated speech and relating only to the time, place, and manner of expression, are valid if the governmental interest to be achieved outweighs the resulting interference with free expression. Manifestly, such restrictions are purposeful acts which involve varying degrees of prior restraint or censorship.

To avoid being subject to the higher level of scrutiny for content-based restrictions, petitioner’s ordinance does not mention the nature of the material purveyed but defines the uses regulated as those which exclude minors from the premises by reason of age. By so doing, the ordinance allows proprietors to define the uses themselves. Nevertheless, respondents contend that petitioner’s ordinance indirectly identifies uses by the content of the material sold and, therefore, content-based analysis should govern. Petitioner maintains that the ordinance does not regulate content, but only the location of adult uses, and, therefore, time, place and manner analysis is appropriate.

We find neither of these arguments controlling. Although the ordinance addresses only adult uses, it was not a purposeful attempt to regulate speech and its effect on expression is only incidental. The Town did not single out adult uses for regulation because of any hostility to the views expressed in the material they purveyed or in an attempt to insulate the public from their messages but because they produced injurious effects on the Town’s neighborhoods. It enacted the ordinance to address the harms to bystanders, neighboring property owners, just as the Legislature has enacted statutes forbidding the sale of child pornography to address the harm to the juvenile participants rather than to address harm to viewers of the pornography (cf., People v Ferber, 57 NY2d 256). The Town acted to correct the effects of adult uses on community development, not on its citizens’ moral development, and though the legislation enacted to accomplish that purpose has an effect on the expressive component of respondents’ activity that effect is only incidental. The ordinance is not a prior restraint foreclosing the sale and distribution of constitutionally protected materials. On the contrary, it authorizes the location of adult uses, as of right, in several areas of the Town and bookstores selling materials of general interest also may sell adult materials in segregated areas of their stores without being subject to the provisions of the ordinance. Neither does the ordinance constitute censorship because it does not distinguish between the messages that various adult businesses convey. All types of nonobscene sexually explicit materials are covered and may be sold in Islip or purchased by those wishing them. Moreover, the effectiveness of the message contained in adult materials, unlike the effectiveness of the message contained in political speech, for example, is not at all dependent on the place where made.

That the Town’s action was justified by concerns unrelated to speech does not end the inquiry, however (cf., Arcara v Cloud Books, 478 US 697). The dispositive question is whether the Town went too far and enacted an ordinance that had an impermissible incidental effect abridging free expression (see generally, Day, Incidental Regulation of Free Speech, 42 Miami L Rev 491, 499-500, 523-524, 527-528). The applicable State standard for reviewing such regulation is found in People ex rel. Arcara v Cloud Books (68 NY2d 553, supra).

In Arcara the Erie County District Attorney attempted to close a bookstore for one year pursuant to provisions of the Public Health Law relating to public nuisances. He did not claim that the bookstore was guilty of any criminal act, only that customers were engaging in illegal sexual activities on the premises. The District Attorney did not claim that he had attempted to arrest the customers, enjoin their conduct or undertake some less drastic action before closing the bookstore. We found the closure incidentally affected speech and, applying the four-part test of United States v O’Brien (391 US 367, 377), held that although the District Attorney’s action satisfied the first three parts of the test, it could not be sustained because he had failed to demonstrate that the regulation was no broader than necessary to achieve his purpose of policing the criminal conduct (People ex rel. Arcara v Cloud Books, 65 NY2d 324).

On appeal, the Supreme Court reversed, holding that O'Brien did not apply because the District Attorney’s purpose was to prevent conduct by individual customers which had no expressive component and the harm to the bookstore was too remote to implicate First Amendment concerns. On remand, we applied our State standards, concluding that the regulation did indeed affect the bookstore’s rights and held that, under our State Constitution, regulation designed to carry out legitimate and important governmental objectives which incidentally burdens free expression may be sustained only if the State action is "no broader than needed to achieve its purpose” (People ex rel. Arcara v Cloud Books, 68 NY2d, supra, at 558). Although the stated purpose of the District Attorney was not to regulate the content of expressive material, there were obvious means for directly policing the illegal conduct without closing premises on which a lawful business was being operated. In the absence of evidence that such means were not adequate we judged the relief requested by the District Attorney broader than necessary to control the illegal conduct.

The dissenters construe Arcara in absolutist terms contending it requires proof in every case that alternative remedies have been attempted without success and that the proposed regulation is therefore appropriate and no broader than necessary to address the problem. They equate the "no broader than necessary” test with the "least restrictive means” standard used in First Amendment analysis to test regulations incidentally burdening speech and assert that petitioner has failed to satisfy that test.

In this case, unlike Arcara where the asserted governmental interest could have been secured by criminal proceedings or injunction, the adverse affects of adult uses on Islip’s neighborhoods are not subject to direct attack and the Town’s use of its zoning powers was the most appropriate means to address its substantive problems. Manifestly, the zoning regulations are less restrictive than banning adult uses altogether, and more compatible with free speech values than a licensing scheme which arguably could present opportunities for the improper exercise of discretion (cf., Young v American Mini Theatres, 427 US 50, supra). Significantly, the stipulated facts demonstrate that there remains ample space available for adult uses after the rezoning and it is neither claimed nor established that if the ordinance is enforced the total number of adult bookstores will decline or that fewer potential customers will be able to conveniently patronize them.

Arguments can be advanced that different techniques should be used to address the problem, as Judge Titone does in his dissent, but that is not to say that they are constitutionally required. The members of the judiciary are hardly authorities on zoning and planning competent to frame broadly based provisions of an ordinance sufficient to meet the needs of the community and protect it from the harms caused by adult uses. To suggest alternative provisions amounts to nothing more than a disagreement with the Town over how much corrective action is wise and how best it may be achieved. The ordinance adopted is an appropriate method for addressing existing problems; it is not overinclusive and it does not unduly restrict adult uses to limited or unsuitable areas of the Town. Accordingly, the ordinance, as approved by the Appellate Division, is "no broader than needed” for the intended purpose (People ex rel. Arcara v Cloud Books, supra, at 558; see generally, Day, Incidental Regulation of Free Speech, 42 Miami L Rev 491, 528-529) and does not violate the State Constitution.

IV

Finally, respondents challenge provisions of the ordinance which require the termination of nonconforming adult uses. Those provisions authorize amortization of adult uses over a period of llA to 5A years, measured from the 1980 effective date of the ordinance. The particular period of amortization varies depending on the amount of the capital investment in the use. Respondents challenge the Town’s amortization provision as facially unconstitutional because it applies to preexisting uses (they note that the zoning prohibitions in Renton and Young were prospective only) and because they claim the ordinance is content-based regulation.

The general rule against interpreting statutes or ordinances retrospectively, especially where vested rights are involved, applies to zoning ordinances. The intractable problem of eliminating nonconforming uses, however, has led the courts of this State to sustain amortization provisions if the period allowed to recapture the investment in the use is reasonable (Matter of Suffolk Outdoor Adv. Co. v Town of Southampton, 60 NY2d 70, rearg denied 61 NY2d 670; see, Modjeska Sign Studios v Berle, 43 NY2d 468, rearg denied 43 NY2d 951, appeal dismissed 439 US 809; Matter of Harbison v City of Buffalo, 4 NY2d 553, supra; see also, Annotation, Nonconforming Uses-Amortization, 22 ALR3d 1134). Reasonableness is determined by examining all the facts, including the length of the amortization period in relation to the investment and the nature of the use. The period of amortization will normally increase as the amount invested increases or if the amortization applies to a structure rather than a use. Presumptively, amortization provisions are valid unless the owner can demonstrate that the loss suffered is so substantial that it outweighs the public benefit gained by the exercise of the police power.

Respondents have failed to overcome the presumption. Indeed, they have continued to operate well past the maximum five-year period and they have presented no evidence of economic loss which would establish unreasonableness. Conversely, the Town has established the damage caused to its neighborhoods by adult uses and the substantial investment it has made, particularly in the Village of Bay Shore, to overcome the blight caused in part by them.

Respondents also claim that amortization applied to uses enjoying constitutional free speech protection amounts to content-based regulation and, therefore, legislation regulating them must be prospective or "grandfather-in” existing uses. Since the ordinance is content-neutral under both the Federal and State Constitutions, the amortization provisions rest upon the same legal foundation as such provisions generally and, on the facts presented here, are valid (see, Hart Book Stores v Edmisten, 612 F2d 821, supra [six-month period plus discretionary extensions]; see, Dumas v City of Dallas, 648 F Supp 1061 [three-year amortization period]; Cook County v Renaissance Arcade & Bookstore, 122 Ill 2d 123, 522 NE2d 73, supra [six-month period with extensions]; Northend Cinema v City of Seattle, 90 Wash 2d 709, 585 P2d 1153, supra [90-day period]).

V

Finally, we agree with the Appellate Division that the ordinance is neither vague nor subject to attack for over-breadth for the reasons stated in its opinion (141 AD2d, at 163-164).

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

Appendix

The ordinance enacted by the Islip Town Board, in its entirety, provides as follows:

"§ 68-341.1. Adult uses. [Added 9-23-80]

"Adult uses shall be allowable in an Industrial 1 District only as a special exception by the Board of Appeals after public hearing.

"A. Purposes and considerations.

"(1) In the execution of this ordinance it is recognized that there are some uses which, due to their very nature, have serious objectionable characteristics. The objectionable characteristics of these uses are further heightened by their concentration in any one area, thereby having deleterious effects on adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods or land uses.

"(2) It is further declared that the location of these uses in regard to areas where our youth may regularly assemble and the general atmosphere encompassing their operation is of great concern to the Town of Islip.

"(3) These special regulations are itemized in this section to accomplish the primary purposes of preventing a concentration of these uses in any one area and restricting their accessibility to minors.

"B. Definitions. As used in this ordinance, the following terms shall have the meanings indicated:

"adult bookstore — An establishment having as a substantial or significant portion of its stock-in-trade books, magazines, other periodicals, films, slides and video tapes and which establishment is customarily not open to the public generally but excludes any minor by reason of age.

"adult drive-in theater — A drive-in theater that customarily presents motion pictures that are not open to the public generally but excludes any minor by reason of age.

"adult entertainment cabaret — A public or private establishment which presents topless dancers, strippers, male or female impersonators or exotic dancers, or other similar entertainments, and which establishment is customarily not open to the public generally but excludes any minor by reason of age.

"adult motel — A motel which is not open to the public generally but excludes minors by reason of age, or which makes available to its patrons in their rooms films, slide shows or videotapes, which if presented in a public movie theater would not be open to the public generally but would exclude any minor by reason of age.

"adult theater — A theater that customarily presents motion pictures, films, videotapes or slide shows, that are not open to the public generally but exclude any minor by reason of age.

"massage establishment — Any establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths and steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath or duly licensed physical therapist or barbershops or beauty salons in which massages are administered only to the scalp, face, neck or shoulders. This definition also shall exclude health clubs which have facilities for physical exercise, such as tennis courts, racquetball courts or exercise rooms, and which do not receive their primary source of revenue through the administration of massages.

"peep shows — A theater which presents material in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged and which is not open to the public generally but excludes any minor by reason of age.

"C. The adult uses as defined in Subsection B above are to be restricted as to location in the following manner in addition to any other requirements of this Code.

"(1) Any of the above uses shall not be located within a five-hundred-foot radius of any area zoned for residential use.

"(2) Any of the above uses shall not be located within a one-half-mile radius of another such use.

"(3) Any of the above uses shall not be located within a five-hundred-foot radius of any school, church or other place of religious worship, park, playground or playing field.

"D. The restrictions enumerated in Subsection C above may be waived by the Town Zoning Board of Appeals if the applicant shows and the Board finds that the following conditions have been met in addition to the general conditions contained in Article XXXIII of this ordinance:

"(1) That the proposed use will not be contrary to the public interest or injurious to nearby properties and that the spirit and intent of this ordinance will be observed;

"(2) That the establishment of an additional use of this type in the area will not be contrary to any program of neighborhood conservation or improvement, either residential or nonresidential; and

"(3) That fifty-one percent (51%) or more of the property owners within the restricted area as defined in Subsection C(l) of this section have signed a petition stating that they have no objection to the establishment of one of the uses defined above.

"E. No more than one (1) of the adult uses as defined above shall be located on any lot.

"F. By amortization, the right to maintain a legal nonconforming adult use shall terminate in accordance with the following schedule:

"Amount of Capital Investment” as of the Effective Date of this Ordinance Date Before Which Use Shall Terminate

0 to 5,000 January 1,1982

5.001 to 8,000 January 1, 1983

8.001 to 15,000 January 1, 1984

15.001 to 22,000 January 1, 1985

22.001 or more January 1, 1986

"note: The term 'capital investment’, as used above, is defined to mean the initial outlay by the owner or operator of the use to establish the business as of the date of the enactment of the ordinance, exclusive of the fair market value of the structure in which the use is located.”

Titone, J.

(dissenting). Only two years ago, in People ex rel. Arcara v Cloud Books (68 NY2d 553, 557 [Arcara II]), this court observed "New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community”. Consequently, we held in the context of a public nuisance statute affecting an "adult” bookstore that the State Constitution is more protective of expression than the Federal Constitution (id., at 557-559; NY Const, art I, § 8). By applying the content-neutral test of Arcara to the content-based ordinance challenged here, the majority has ignored a fundamental touchstone of free speech jurisprudence — the distinction between the standards for evaluating the validity of content-based and content-neutral regulations. Such analysis can be explained only if the majority decision is viewed as incorporating, under our State Constitution, the Federal test for determining whether a zoning ordinance is "content-based.” Because I believe that the application of the standard outlined in Renton v Playtime Theatres (475 US 41) severely undermines this State’s strict protection against content-based regulations, and indicates an abandonment of the highly protective view of speech taken in Arcara, I dissent.

I

As a threshold matter, it is imperative to point out what this case is not. This case does not involve obscene material (see, Miller v California, 413 US 15), commercial speech (see, Central Hudson Gas & Elec. v Public Serv. Commn., 447 US 557), fighting words (see, Chaplinsky v New Hampshire, 315 US 568), libel (see, Gertz v Robert Welch, Inc., 418 US 323), child pornography (see, New York v Ferber, 458 US 747), incitement to imminent lawless action (see, Brandenburg v Ohio, 395 US 444), or privacy concerns implicated when there exists a "captive audience” (see, Lehman v City of Shaker Hgts., 418 US 298; Kovacs v Cooper, 336 US 77). "What this case does involve is the constitutional permissibility of selective interference with protected speech whose content is thought to produce distasteful effects” (Young v American Mini Theatres, 427 US 50, 85 [Stewart, J., dissenting]). Thus, we are dealing solely with nonobscene, adult-oriented material shown only to willing adults on private property as a form of entertainment. Such material is clearly entitled to full First Amendment protection (see, Schad v Mount Ephraim, 452 US 61, 65; Joseph Burstyn, Inc. v Wilson, 343 US 495, 502-503).

In addition, although zoning ordinances usually enjoy a presumption of constitutionality (see, Asian Ams. for Equality v Koch, 72 NY2d 121, 131; McMinn v Town of Oyster Bay, 66 NY2d 544, 549), that presumption "carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment” (Schad v Mount Ephraim, supra, at 77 [Blackmun, J., concurring]; see, Young v American Mini Theatres, supra, at 75 [Powell, J., concurring]; Moore v East Cleveland, 431 US 494, 514 [Stevens, J., concurring]). Indeed, this court has recognized that zoning ordinances must be carefully scrutinized to discern whether a municipality has attempted to conceal exclusionary zoning practices (Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122, 129; see, Asian Ams. for Equality v Koch, supra, at 133). That same concern and scrutiny must be applied to zoning ordinances that potentially impinge upon free speech guarantees. Since Islip’s zoning ordinance is a content-based regulation that severely impinges on appellants’ freedom of speech, the presumption of constitutionality is overcome beyond a reasonable doubt (see, Asian Ams. for Equality v Koch, supra, at 131).

The central question presented by this appeal is whether the challenged zoning ordinance is an attempt to regulate bookstores by their content, which would be subject to a traditional strict scrutiny analysis (see, Police Dept. v Mosley, 408 US 92, 95, 98-99), or is instead a "content-neutral” rule directed only toward the unwanted "secondary effects” of certain kinds of business establishments in the community. This initial determination depends on whether the recently revised Federal concept of content-neutral legislation, as outlined in Renton v Playtime Theatres (475 US 41, supra), is also controlling under the State freedom of expression guarantee. I believe it is not.

II

The majority’s characterization of Islip’s ordinance as content-neutral (majority opn, at 561) is flawed because "time, place, and manner regulations must be 'applicable to all speech irrespective of content’ ” (Consolidated Edison Co. v Public Serv. Commn., 447 US 530, 536, citing Erznoznik v City of Jacksonville, 422 US 205, 209; see, Pacific Gas & Elec. Co. v Public Utils. Commn., 475 US 1, 20). In light of the language of the challenged ordinance, it cannot be denied that Islip has selectively imposed limitations on the placement of certain business establishments based exclusively on the content of the material viewed on the premises. Although the ordinance is not explicitly predicated on the content of the material, its application is predicated upon whether the use is "not open to the public generally but excludes any minor by reason of age.” The Town maintains that the ordinance is not content-based because it does not define uses based upon the content of the material purveyed, but rather upon whether or not minors are excluded. Thus, their argument goes, the controlling distinction is age, not the content of the material. Such artful draftsmanship plainly cannot avoid implicating the guarantees of freedom of speech, since it is patently directed against establishments purveying a particular category of material, and has the effect of singling out a certain category of uses based solely upon the content of the material contained on the premises. Such differential treatment manifestly invokes heightened scrutiny (see, Minneapolis Star & Tribune Co. v Minnesota Commr. of Revenue, 460 US 575, 582-585).

Under traditional analysis, a content-based regulation of protected speech, may be sustained "only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest” (Consolidated Edison Co. v Public Serv. Commn., supra, at 540; see, Pacific Gas & Elec. Co. v Public Utils. Commn., supra, at 19). Indeed, this court has stated, "government regulation designed to suppress traditional communicative activity because of its content or potential impact is subject to the most rigorous scrutiny. Absent some compelling justification, such as a likelihood that speech will incite 'imminent lawless action’, content-oriented restrictions may not stand” (Matter of Consolidated Edison Co. v Public Serv. Commn., 47 NY2d 94, citing Brandenburg v Ohio, 395 US 444, 447, supra [emphasis added], revd on other grounds 447 US 530).

While there can be no doubt that a municipality has an interest in "the stability and revitalization of the neighborhoods” (majority opn, at 549), this interest cannot be considered "compelling” without at least some showing that the form of expression to be regulated has an actual and specific deleterious effect on the community. Here, there was no such showing.

To support its view that the Islip ordinance is constitutionally unobjectionable, the majority relies heavily on the written report prepared by the Town prior to enactment of its adult-use ordinance. The majority states that the report "demonstrated, by analysis of each adult entertainment business, the harmful effect of these uses on the surrounding area” and that the research and data underlying the report demonstrated that the location of adult businesses in certain areas "driv[es] out traditional downtown businesses * * * increased] criminal activity and lower[s] nearby residential property values.” (Majority opn, at 549, 553.) The report, however, is based primarily on general information pertaining to other locales throughout the country, most of which are in urban settings. Such findings thus have little bearing on what presently exists in the suburban Town of Islip. Additionally, the individual site analysis conducted by the Town in its own study is, indeed, most telling. Referring to appellants’ bookstore, the site analysis states:

"This adult book store is adjacent to the Regent Theatre, an adult cinema. The close proximity of these two restricted businesses creates a void in the commercial center of Main Street.
"It also creates an area which certain shoppers will avoid due to their preference not to associate with these businesses. ” (Emphasis supplied.)

As this analysis makes clear, the Town residents’ distaste for the message conveyed in appellants’ establishment lies even at the root of the Town’s stated business concerns. However, the residents’ "preference not to associate with” appellants’ bookstore, is not sufficient to justify the content-based ordinance, since they "could effectively avoid further bombardment of their sensibilities simply by averting their eyes” (Cohen v California, 403 US 15, 21). Moreover, despite the report’s assertions that appellants’ store occupies a "dead zone”, the Town has stipulated that "during the period 1978 to present, real property values have increased in the immediate vicinity of respondent’s location and * * * vacancy rates for commercial premises have decreased over the same period in the same area.” In addition, there is absolutely no proof whatsoever of increased criminal activity within or around appellants’ bookstore. Plainly, the Town has failed to prove that appellants’ bookstore has " 'delayed the upsurge’ of downtown Bay Shore.” (Majority opn, at 534.)

Without proof of actual secondary effects directly attributable to appellants’ bookstore, there exists nothing but the Town’s fear of appellants’ bookstore. In principle, Islip’s zoning ordinance is no different than the City of Chattanooga trying to prevent the showing of the musical "Hair” because of its explicit treatment of sex, and the Town’s beliefs that such material was inappropriate for the community (see, Southeastern Promotions v Conrad, 420 US 546). However, public distaste and societal fear of the potential effects of certain speech has never provided sufficient justification to suppress protected speech (see, Whitney v California, 274 US 357, 376 [Brandeis, J., concurring] ["Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.”]; Tinker v Des Moines School Dist., 393 US 503, 508).

Ill

In the face of Islip’s unproven "compelling” need to regulate adult-uses, the majority nonetheless upholds the ordinance by purportedly applying the test we applied in People ex rel. Arcara v Cloud Books (supra) (majority opn, at 558), a case which concerned a content-neutral nuisance statute. The majority eschews traditional content-based analysis in favor of content-neutral analysis because the ordinance "was not a purposeful attempt to regulate speech and its effect on expression is only incidental.” (Majority opn, at 557 [emphasis added].)* * Indeed, the majority relies heavily on the fact that the stated purpose of the ordinance is "to address the harms to bystanders, [and] neighboring property owners,” and that "[t]he Town did not single out adult uses * * * because of any hostility to the views expressed in the material they purveyed” (majority opn, at 557). Such reliance on the purpose of Islip’s ordinance is remarkably similar to the "predominant purpose” test espoused in Renton v Playtime Theatres (supra), and thoroughly discussed by the majority. Although the majority does not explicitly adopt or apply the "predominant purpose” test, in the absence of some other clearly articulated principle, the majority opinion must be read as an incorporation of the "predominant purpose” test into the framework of our State’s freedom of speech jurisprudence. It is the use of this test, or any other test, that converts a content-based regulation into a content-neutral regulation, which forces my divergence from the majority.

In Renton, the Supreme Court held that a statute may be characterized as content-neutral when its "predominant purpose” is to effectuate a goal unrelated to restricting expression. Critically, this decision adds a completely new twist to First Amendment jurisprudence because it allows an otherwise content-based regulation to be recast as content-neutral so long as the stated motivation for the regulation is something other than the suppression of speech. The result is simple. Content-based regulations which would normally be subject to strict scrutiny and a compelling need standard become subject to the much lower showing of substantial need. And, regulations which would be unconstitutional if judged under the traditional compelling need standard pass constitutional muster under Renton whenever the ordinance is justified by reliance on secondary effects — whatever that means. Taken to its logical extreme this analysis could adversely affect our free speech jurisprudence in all areas, including pure political speech (Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 115 [1987]; see, Boos v Barry, 485 US 312, —, 108 S Ct 1157, 1163-1164 [Renton discussed in context of statute restricting picketing in front of foreign embassies]; but see, Tribe, American Constitutional Law § 12-3, at 799, n 17 [2d ed] ["The Renton view will likely prove to be an aberration limited to the context of sexually explicit materials.”]).

In an important sense, the "predominant purpose” test represents a mere linguistic device to circumvent the traditional rule that content-based regulations be supported by an actual compelling governmental need (see, Consolidated Edison Co. v Public Serv. Commn., 447 US, supra, at 540; Pacific Gas & Elec. Co. v Public Utils. Commn., 475 US, supra, at 19). By emphasizing the stated purpose of the legislation, the Renton analysis virtually binds courts to limit their inquiry to whether the stated "predominant” legislative motive does not involve content, and, if not, to rely on that stated motive (see, Walnut Props. v City of Whittier, 808 F2d 1331, 1334 [9th Cir]). This is troublesome for two very basic reasons.

First, inquiries into legislative motives or purposes are hazardous and inexact (see, United States v O’Brien, 391 US 367, 380). It is unlikely that a municipality would explicitly acknowledge a motive to restrict a particular message, and it is all to easy for local legislatures to justify restrictions by verbalizing some legitimate governmental interest in support (Stone, op. cit., at 56). Additionally, there exists the possibility that, in enacting legislation aimed ostensibly at some other goal, a local legislature will, consciously or unconsciously, be influenced by its own view of the restricted speech (id.). It is for precisely this reason that any regulation whose application depends on content must be judged as a content-based regulation regardless of the underlying motive. Indeed, prior to Renton all content-based regulations were simply presumed to be founded upon improper motives and judged accordingly. As Justice Brennan pointed out in his dissent in Renton, "[t]he fact that adult movie theatres may cause harmful 'secondary’ land-use effects may arguably [provide] a compelling reason to regulate such establishments; it does not mean, however, that such regulations are content-neutral” (Renton v Playtime Theatres, supra, at 56 [Brennan, J., dissenting]).

My second concern is that the "predominant purpose” test encourages litigants to defend politically directed content-based regulations by concocting potential secondary effects of certain speech such as congestion, visual clutter, security, or deterioration of property values (see, Boos v Barry, 485 US 312, —, 108 S Ct, supra, at 1171 [Brennan, J., concurring in part]). As Justice Brennan recently stated, "[n]o doubt a plausible argument could be made that the political gatherings of some parties are more likely than others to attract large crowds causing congestion, that picketing for certain causes is more likely than other picketing to cause visual clutter, or that speakers delivering a particular message are more likely than others to attract an unruly audience” (id.).

Indeed, Islip’s primary rationale — fostering community renewal by eliminating uses that are distasteful to shoppers and discourage their patronage — could just as easily be applied to justify a regulation prohibiting certain unpopular minority political or religious groups, such as gay rights activists or Shi’ite Muslims, from locating their offices in a downtown shopping district. And, under the majority’s approach, such regulations would not be subject to the "compelling need” standard ordinarily applied in content-based challenges as long as the restriction was "minimal” and the prohibited uses were permitted in other locales. Thus, reliance on secondary effects can become a pretext for suppressing unfavorable expression (see, Young v American Mini Theatres, supra, at 84 [Powell, J., concurring]).

This case is the perfect example of the failings of the "predominant purpose” test. The Town of Islip’s report on the secondary effects of adult uses on surrounding areas has proven to be incorrect, at least insofar as it applies to appellants’ bookstore. Property values have increased, and commercial vacancies have decreased. There exists no actual proof of secondary effects. Plainly, public distaste for speech has never, without more, provided sufficient justification to suppress protected speech (see, Boos v Barry, 485 US 312, —, 108 S Ct, supra, at 1171 [Brennan, J., concurring in part]).

Further, despite its stated rationale, the Town’s actual motive is suspect here. If Islip were truly concerned only with the secondary effects of neighborhood deterioration, it would have attempted to regulate all kinds of uses that create such secondary effects, including pawnshops, and other potentially undesirable retail stores such as secondhand, and gun stores (see, Islip Town Code § 68-271 [D]; § 68-286 [H]; § 68-301 [D] [zoning ordinances affecting business districts]). Because Islip has failed to "demonstrate a comprehensive coordinated effort” to eliminate all uses which create unwanted secondary effects from its business districts, its zoning ordinance is plainly underinclusive and represents a disguised effort to prohibit what it considers undesirable expression (see, Metromedia, Inc. v San Diego, 453 US 490, 531 [Brennan, J., concurring]).

Under our State Constitution, we should not countenance a rule that permits otherwise content-based regulation to be recast as content-neutral simply because the stated purpose is to control certain "secondary effects” of that form of speech. This court has repeatedly stated that New York State offers greater freedom of speech guarantees under our State Constitution than the minimal protection afforded individuals under the Federal Constitution (see, People ex rel. Arcara v Cloud Books, supra, at 557-559; People v P. J. Video, 68 NY2d 296, cert denied 479 US 1091; Matter of Beach v Shanley, 62 NY2d 241, 255-256 [Wachtler, J., concurring]; Bellanca v State Liq. Auth., 54 NY2d 228, cert denied 456 US 1006). To continue to provide New York State citizens broader free speech protection, the "predominant purpose” test must be rejected under our State Constitution.

IV

Even assuming that Islip’s content-based ordinance can somehow be recast as a content-neutral zoning ordinance of general application, the ordinance would still violate our State Constitution. In People ex rel. Arcara v Cloud Books (65 NY2d 324 [Arcara I]), this court applied the content-neutral O’Brien test (see, United States v O’Brien, supra, at 377) to a nuisance statute which had been used to temporarily close an adult bookstore because some patrons had been using the premises to commit illegal sexual acts. Although the regulation was content-neutral and was aimed purely at nonexpressive conduct, we concluded that there was still an impermissible impact upon speech because the bookstore was forced to close, albeit only temporarily. We concluded that the prosecutor had not demonstrated that closing the defendant’s store was the "least restrictive means” to abate the nuisance created by some of its customers (id.).

On appeal, the Supreme Court reversed, holding that the defendant’s First Amendment rights had not been implicated because the nuisance statute was aimed at noncommunicative activity and any impact on the defendant’s speech was only incidental (see, Arcara v Cloud Books, 478 US 697, 702-705). On remand, in Arcara II (68 NY2d 553, supra) we held that regardless of whether a regulation is aimed at speech or at noncommunicative activity, our State Constitution requires that the regulation satisfy a "least restrictive means” standard if it affects expression. Indeed, we stated: "The crucial factor in determining whether State action affects freedom of expression is the impact of the action on the protected activity and not the nature of the activity which prompted the government to act. The test, in traditional terms, is not who is aimed at but who is hit” (People ex rel. Arcara v Cloud Books, supra, at 558 [emphasis added]). Hence, any content-neutral regulation which has the affect of "hitting” speech must be "no broader than needed to achieve its purpose” (id., at 558), a test which logically requires use of the least restrictive means (Tribe, Constitutional Law § 12-7, at 829, n 23 [2d ed]; Note, Padlock Orders and Nuisance Laws: The First Amendment in Arcara v Cloud Books, 51 Alb L Rev 1007, 1016). In this State, the purpose of an ordinance is constitutionally irrelevant for it is only the impact that matters. Hence, we have already rejected any type of "predominant purpose” test. In addition, we noted that the "least restrictive means” includes actual proof that other less intrusive methods had been tried and proved unavailing (68 NY2d, at 559). For this reason, the majority’s reliance on United States v Albertini (472 US 675), to the extent that case may be perceived as stating a different standard, is unpersuasive (majority opn, at 559, n 7).

Although the Town of Islip’s zoning ordinance was aimed at secondary effects, appellants’ speech has been hit. Thus, Arcara imposes a burden on Islip to prove that it has chosen the least restrictive means to accomplish its purpose. This in-eludes proof that other less intrusive means had been tried and failed. Islip has simply failed to do so.

The Town of Islip has completely banned adult-uses from all business districts (subject to an amortization provision), and has allowed them to operate only in the industrial districts (subject to dispersal requirements). This is not the least restrictive means by which the Town could have attempted to prevent the unwanted secondary effects flowing from adult businesses. First, the Town could have given nonconforming uses the protection of a grandfather clause. Since the parties have stipulated that property values have increased and vacancy rates decreased despite appellants’ presence, a grandfather provision permitting appellants’ continued use would clearly not have been inconsistent with the Town’s rehabilitative plan. If the grandfather clause proved troublesome, then, and only then, would the Town have been empowered to proceed in a more restrictive fashion (see, People ex rel. Arcara v Cloud Books, 68 NY2d, supra, at 559). In addition, the Town could have simply required dispersal of adult uses throughout all commercial districts, rather than banning them entirely from business districts. By curtailing the influx of new business in both the business and industrial districts and subjecting them to dispersal requirements, the Town’s ordinance would have achieved its purpose of preventing secondary effects in the most narrow way.*

The severity of the impact created by Islip’s ordinance — an issue the majority has ignored — is also problematic. In Arcara, the injunction imposed under the nuisance statute would have resulted in closing the defendant’s store for only one year, and, the defendant could have immediately opened a new store next door. Here, in contrast, appellants’ store, and other shut-down adult uses, may never reopen at their present locations. The stores’ only option is to find feasible commercial space in the industrial zone. This is a far more forceful "hit” than that which occurred in Arcara.

In response to these constitutional problems, a pervading theme throughout the majority opinion is that the ordinance does not impose any limitation on the "ability of the creators or sellers [of adult-oriented material] to distribute it” and that "the effectiveness of the message contained in adult materials, unlike the effectiveness of the message contained in political speech * * * is not at all dependent on the place where made.” (Majority opn, at 554, 558.) Additionally, the majority finds solace in the fact that adult uses may exist, as of right, in several areas of the Town and that "regular” bookstores may "sell adult materials in segregated areas of their stores without being subject to the provisions of the ordinance.” (Majority opn, at 558.) My response is threefold.

First, the ability of creators and sellers to distribute their products is completely dependent upon the existence and operation of bookstores and movie houses. Without an effective means of distribution, the message, for all intents and purposes, is silenced (see, Smith v California, 361 US 147, 150). Second, removing any form of speech from the heart of a downtown community and relegating it to an industrial district away from the populace, will undoubtedly effect the ability of the message to be communicated. Here, for instance, the message of adult material pertains to the loosening of puritanical ethics in favor of relaxed sexual mores in the society. The elimination of this message from "Main Street” is contrary to this message, and, thereby destroys its effectiveness.

Third, and finally, the fact that the ordinance does not completely ban adult material is of no consequence, and does not justify applying a less exacting level of scrutiny. Indeed, the Supreme Court has consistently rejected the suggestion that a content-based regulation may be justified by a showing that speakers have alternative means of expression (Consolidated Edison Co. v Public Serv. Commn., 447 US, supra, at 541, n 10; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 757, n 15; Southeastern Promotions v Conrad, 420 US, supra, at 556; Spence v Washington, 418 US 405, 411, n 4). Moreover, even in the context of a content-neutral regulation, the Supreme Court has stated that "[o]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place” (Schneider v State, 308 US 147, 163).

Thus, under our clear holding in Arcara, Islip’s ordinance has simply been painted with too broad a brush. Indeed, it is anomalous that we offered more protection against the content-neutral nuisance statute in Arcara than we have offered against Islip’s content-based zoning ordinance.

V

By concluding that Islip’s ordinance is violative of appellants’ guarantee of freedom of speech under our State Constitution, I do not belittle the valid concerns asserted by the Town of Islip. It may well be that such concerns, if proven real, would constitute the kind of compelling need necessary to justify a content-based regulation. Here, however, the close judicial scrutiny that the law requires is not satisfied. For "it is in those instances where protected speech grates most unpleasantly against the sensibilities that judicial vigilance must be at its height” (Young v American Mini Theatres, supra, at 87 [Stewart, J., dissenting]). My obvious preference for content-neutral regulations is based simply on the notion that "[c]ourts can take no better measure to assure that laws will be just than to require that laws be equal in operation” (Railway Express v New York, 336 US 106, 113 [Jackson, J., concurring]).

Accordingly, since I conclude that the Town of Islip’s zoning ordinance is content-based and is not justified by any compelling need, I dissent.

Kaye, J.

(dissenting). In my view, People ex rel. Arcara v Cloud Books (68 NY2d 553) alone leads to reversal of the order below, without the need to embark on a content-based/ content-neutral analysis. I would therefore not reach the difficult question whether the rigorous test of strict scrutiny should apply even to ordinances regulating pornography (see generally, Sunstein, Pornography and the First Amendment, 1986 Duke LJ 589); that test in practical application is tantamount to per se invalidity (see, Renton v Playtime Theatres, 475 US 41, 46-47; Police Dept. v Mosley, 408 US 92, 95, 98-99).

Even assuming the Islip ordinance were content-neutral only, under the plain language of Arcara the Town bears the burden of proving that in banishing a bookstore from its midst "it has chosen a course no broader than necessary to accomplish its purpose.” (68 NY2d, at 559). Put another way, the Town had "to satisfy a 'least restrictive means’ test: it had to show the unavailability of other measures with less detrimental effect on freedom of expression”. (Tribe, American Constitutional Law § 12-7, at 829, n 23 [2d ed] [construing Arcara].) Here, the Town didn’t simply fail to meet this burden; it didn’t even try. The report on which the challenged ordinance was based is devoid of any indication that the Town considered less speech-restrictive alternatives. Under any fair reading of Arcara, this defect is fatal.

The majority sidesteps this result only by trimming Arcara, even suggesting that courts have no business concerning themselves with the intrusiveness of a particular zoning method, notwithstanding that it impacts bookselling — a form of expression which is unquestionably "constitutionally protected activity.” (People ex rel. Arcara v Cloud Books, 68 NY2d, at 558.) While freedoms such as these have been previously accorded transcendent value by this court (see, e.g., People ex rel. Arcara v Cloud Books, supra, at 557; People v P. J. Video, 68 NY2d 296; Bellanca v State Liq. Auth., 54 NY2d 228, 235), self-styled "anti-Skid Row” ordinances are now largely removed from meaningful judicial scrutiny.

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

Order affirmed, with costs.

      . The pertinent provisions of the ordinance are annexed as an Appendix.

        . When applying the predominant purpose requirement of Renton, courts do not invalidate a municipal zoning ordinance simply because one or more legislators sought to suppress protected expression. While Renton requires an examination of a municipality’s motive in enacting the ordinance before examining whether the ordinance is a valid time, place and manner restriction, it is the motive of the Legislature, not individual legislators, that is controlling (see, Walnut Props. v City of Whittier, 808 F2d 1331, 1335-1336). Moreover, even when evaluating the motive of the Legislature, there is a constitutionally significant distinction between an improper motivating factor and an unconstitutional predominant purpose (id.).

      . Although the dissent does not accept that the predominant purpose of the ordinance was to eradicate the secondary effects of adult businesses (see, dissenting opn, at 573), evidently respondents do. They did not seek a trial to establish a contrary motive and they have included in their papers a copy of the minutes of the Town Board meeting at which the ordinance was enacted which establish that the Town’s purpose was to eradicate secondary effects.

      . In fact, bars have been regulated since 1976, although in a different manner, and no new bars have moved into the downtown area since then.

      . Article I, § 8 provides in pertinent part: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

      . The dissent contends that the Town has not suffered from adult uses because land values in downtown Bay Shore have increased since the ordinance was enacted. Although the parties stipulated, for the purpose of this litigation, that real estate values have generally increased in the vicinity of respondents’ bookstore since the ordinance was enacted, petitioner has not agreed, and there is nothing in the record to establish, that the presence of respondents’ stores or of adult uses generally was responsible in any way for this economic improvement. To the contrary, petitioner’s study documents the harm caused by the adult uses and the increase in land values is easily traced to other factors. Disregarding the obvious effects of inflation on land values in Long Island in the nine years since the ordinance was adopted the Town has invested over seven million dollars to develop and improve downtown Bay Shore. Moreover, the zoning change in 1980 has enabled new businesses to invest in the area with the assurance that no new adult uses will be permitted and that existing uses will, in time, be terminated. Indeed, the adult theater formerly located next to the bookstore moved after the ordinance was enacted.

      . The Supreme Court, in explaining the "least restrictive means” test has stated that the incidental burden on speech is no greater than essential, and therefore permissible, so long as the regulation "promotes a substantial government interest that would be achieved less effectively absent the regulation” (see, United States v Albertini, 472 US 675, 689). Manifestly, petitioner’s ordinance satisfies that test.

      . NY Constitution, article I, §8 provides in pertinent part: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

        . Contrary to the majority’s assertion, I do not claim that the presence of appellants’ store was responsible for the economic improvement which occurred in Bay Shore (majority opn, at 557, n 6). My reliance on the stipulated facts is simply to demonstrate that the perceived fear of financial devastation caused by a "skid-row” effect did not occur. I make no claim whatsoever as to the causal relationship between appellants’ bookstore and the economic growth which has occurred in Islip. To the contrary, the majority posits that increases in real property values are due to inflation in Long Island (majority opn, at 557, n 6). Such information is not included in the stipulated facts, and is not so apparent as to be subject to judicial notice.
      In addition, neither the Town nor the majority, has sufficiently proven that any "past deterioration” that may have existed in Islip was directly attributable to appellants’ bookstore (majority opn, at 553). The Town’s mere "prediction that, unless remedied [by closing adult-uses], [such] deterioration would continue” (majority opn, at 553) is insufficient to create a compelling need. Content-based jurisprudence does not condone such preemptive strikes (see, Brandenburg v Ohio, 395 US 444, 447).

      . The majority suggests that Islip’s ordinance does not "constitute censorship because it does not distinguish between the messages that various adult businesses convey.” (Majority opn, at 558.) This statement is based on the apparent distinction between subject matter and viewpoint restrictions which originate in Justice Stevens’ plurality opinion in Young v American Mini Theatres (427 US 50). In advancing his two-tier approach to First Amendment jurisprudence, Justice Stevens stated, "[t]he essence of that rule [prohibiting regulation based on the content of protected speech] is the need for absolute neutrality by the government; its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator” (id,., at 67). This "absolute neutrality” language spurred academic commentators to urge that there be different tests for those content-based restrictions that are viewpoint-neutral and those that are not (see, Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo LJ 727 [1980]; Stephan, The First Amendment and Content Discrimination, 68 Va L Rev 203 [1982]; Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U Chi L Rev 81 [1978]). However, the Supreme Court has continually stated that "[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic” (Consolidated Edison Co. v Public Serv. Commn., 447 US 530, 537; see, Boos v Barry, 485 US 312, —, 108 S Ct 1157, 1163; Metromedia, Inc. v San Diego, 453 US 490, 519; Carey v Brown, 447 US 455, 462, n 6; see also, Finzer v Barry, 798 F2d 1450, 1469 [Bork, J.]). Accordingly, even if Islip’s ordinance is viewpoint-neutral, "strict scrutiny” is still required because "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (Police Dept. v Mosley, 408 US 92, 95). I also disagree with the majority’s conclusion that Islip’s ordinance is viewpoint-neutral. The expression represented in appellants’ store clearly carries with it a message in favor of relaxed sexual mores. Here, unlike cases involving political speech, the specific view is inextricably intertwined with the entire category. Thus, Islip’s ordinance affects both an entire category of speech and a particular viewpoint (see, Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U Chi L Rev 81,111-112 [1978]).

      . The majority’s suggestion that the purpose of Islip’s ordinance is similar in principle to statutes forbidding the sale of child pornography because of the "harm to the juvenile participants rather than [the] harm to viewers of the pornography” (majority opn, at 557-558), ignores the fact that child pornography is excluded from the protections of the First Amendment (New York v Ferber, 458 US 747). Here, by contrast, in the absence of a judicial finding of obscenity, appellants’ speech is completely protected by the First Amendment. Thus, reliance on Ferber is misplaced.

      . Professor Stone states: "If taken seriously, and extended to other contexts, the Court’s transmogrification in Renton of an expressly content-based restriction into one that is content-neutral threatens to undermine the very foundation of the content-based/content-neutral distinction. This would in turn erode the coherence and predictability of first amendment doctrine. One can only hope that this aspect of Renton is soon forgotten.” (Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 116-117 [1987]; see, Tribe, American Constitutional Law § 12-3, at 798, n 17 [2d ed] ["Carried to its logical conclusion, the doctrine could gravely erode first amendment protections.”].)

      . It is for exactly this reason that I cannot simply accept that the predominant purpose of the ordinance is to eradicate the secondary effects of adult businesses and not to suppress speech because of its content (see, majority opn, at 553, n 3). In addition, the fact that appellants "did not seek a trial to establish a contrary motive” (majority opn, at 553, n 3) is of no legal consequence. I find it unnecessary to challenge, and prove, that legislators enacted an ordinance for the purpose of suppressing speech. Indeed, traditional content-based jurisprudence simply avoids this "proof’ problem by presuming improper motive.

      . I also disagree with the majority’s oversimplification of content-neutral jurisprudence. The majority states that content-neutral restrictions "are valid if the governmental interest to be achieved outweighs the resulting interference with free expression.” (Majority opn, at 557.) I do agree that expression, whether oral or written, or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. However, such restrictions are "valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information” (Clark v Community for Creative Non-Violence, 468 US 288, 293; City Council v Taxpayers for Vincent, 466 US 789; United States v Grace, 461 US 171; Perry Educ. Assn., v Perry Local Educators’ Assn., 460 US 37, 45-46). By refusing to actually apply such standards, the majority’s analysis can lead to the "balancing” away of First Amendment protections.

      . This test, normally applied to "symbolic speech”, states that: "[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (Id., at 377.)

      . In both Young and Renton prior nonconforming uses received the protection of a grandfather clause.

      . In Young, for instance, adult-uses were dispersed throughout all commercial districts, not only the industrial districts.

      . The majority’s suggestion that the "judiciary are hardly authorities on zoning and planning competent to frame broadly based provisions of an ordinance sufficient to meet the needs of the community” (majority opn, at 560) ignores the fact that the judiciary is well equipped and, indeed, required to closely scrutinize zoning ordinances which impact upon constitutional rights (see, Baer v Town of Brookhaven, 73 NY2d 942; McMinn v Town of Oyster Bay, 66 NY2d 544). Such a duty manifestly includes the power, and ability, to review a town’s corrective actions to determine whether such a zoning ordinance is constitutional. If the proper jurisprudential analysis includes an examination as to whether the least restrictive means were employed, it is our duty to closely scrutinize the ordinance to ensure that the legislature has chosen such means. If an equally effective and less burdensome alternative exists, that option must be chosen. This is not simply second-guessing the Town, as suggested by the majority.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of William H. Intemann, Jr., a Judge of the County Court, Family Court and Surrogate’s Court of Hamilton County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued April 28, 1989;
    decided June 6, 1989
    POINTS OF COUNSEL

      Robert K. Ruslander for petitioner.
    The findings of the Commission on Judicial Conduct are not supported by substantial evidence in the record. The findings and conclusions do not justify the sanction of removal.

      Gerald Stern and Jean M. Savanyu for respondent.
    Petitioner’s conduct violated established ethical standards and amply demonstrates his lack of fitness for judicial office. (Matter of Vaccaro, 42 NY2d [a]; Matter of Myers, 67 NY2d 550; Matter of Gelfand, 70 NY2d 211; Matter of Steinberg, 51 NY2d 74; Matter of Boulanger, 61 NY2d 89.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of the County Court, Family Court and Surrogate’s Court in Hamilton County, was charged with violating the Rules of Judicial Conduct for participating in business activity, practicing law while sitting as a Judge and failing to disqualify himself in certain matters that came before him as a Judge. Following a hearing at which petitioner and several other witnesses testified, the Commission on Judicial Conduct sustained the charges, further found that petitioner’s testimony in response to the Commission’s inquiries lacked candor in several respects and determined that petitioner should be removed from office. After reviewing the record, we agree that the determination is supported by the evidence and also conclude that the sanction of removal is appropriate.

Petitioner was elected a Judge in November 1983 and took office on January 1, 1984. The Commission found on unrebutted, documentary evidence that from January 1, 1984 through January 1986, petitioner actively participated in three businesses organized for profit in violation of section 100.5 (c) (2) of the Rules Governing Judicial Conduct (22 NYCRR). The substantial management functions petitioner continued to perform on behalf of the businesses after January 1, 1984 included the retention of counsel, the approval and execution of contracts for the sale of real estate and the execution of deeds.

Petitioner also continued to practice law after he became a Judge and attempted to conceal this fact from both the clients and the Commission. The charges focused on three estates petitioner represented before taking office. In December 1983, petitioner knew that he could not complete the work on the estate matters before the end of the year; yet he did not turn his files over to the representatives of the estate, nor did he advise them that another law firm was taking over his law practice. When petitioner did subsequently contact the estate clients, he advised them that he had transferred their files to a new lawyer. He did not seek prior permission of the clients for the transfers. The evidence established that petitioner in fact did not transfer the cases to the lawyer who took over his practice, but instead attempted to complete the legal work himself. The lawyer acquiring petitioner’s practice testified that he had never worked on or heard of the three estate matters. Additionally, the evidence established that petitioner instructed one executrix to sign, but not date, an estate tax form which, after becoming a Judge, petitioner signed as preparer and then backdated to make it appear that he had completed the work before taking office.

On another estate, the executrix, Mrs. Griesen, sent a letter, dated February 8, 1984, by registered mail to the lawyer allegedly taking over petitioner’s practice. This letter contained a stock certificate needed to close the estate. Petitioner obtained the letter at the local post office by signing the other lawyer’s name on the return receipt. That same day, he sent to Mrs. Griesen a letter typed on his law office stationery, acknowledging receipt of her letter, and asking her to execute and return the stock assignment. Later, before the Commission, petitioner denied ever opening or reading the letter addressed to his successor but he had no explanation for his letter asking her to sign the stock assignment form. We agree with the conclusion of both the Hearing Referee and the Commission that petitioner’s testimony, especially in connection with this matter, was not worthy of belief.

During the first two years in office, petitioner heard 21 matters brought by an attorney who was his close friend, business associate and personal attorney. The nature of the relationship was such that to avoid the appearance of impropriety and the potential for a conflict of interest, petitioner should have disqualified himself from those cases (see, Matter of Conti, 70 NY2d 416, 419).

In evaluating the sanction imposed, we find significant not only the serious nature of petitioner’s improper acts, including the deception practiced on several of his clients, but also petitioner’s lack of candor during the investigation and hearing. Such conduct cannot be condoned in a Judge and petitioner should be removed from office.

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Honorable William H. Intemann, Jr., removed from the office of Judge of the County Court, Family Court and Surrogate’s Court, Hamilton County.


text:
    The People of the State of New York, Respondent, v Otis Hilliard, Appellant.
    Submitted May 2, 1989;
    decided June 6, 1989
    POINTS OF COUNSEL

      Paul L. Gruner, Public Defender (Denise Y. Dourdeville of counsel), for appellant.
    I. The court erred in requiring appellant to appear before the Grand Jury in handcuffs and shackles. (People v Davis, 119 Misc 2d 1013; People v Lindenborn, 23 Misc 426; People v Monroe, 125 Misc 2d 550; People v Roman, 35 NY2d 978; People v Gonzalez, 115 AD2d 899.) II. The court erred in refusing to charge justification. (People v Padgett, 60 NY2d 142; People v Watts, 57 NY2d 299; People v Astle, 117 AD2d 382.) III. The verdict was against the weight of the evidence as a matter of law. (People v Contreras, 108 AD2d 627; Matter of Philip A., 49 NY2d 198; People v Almonte, 102 Misc 2d 950; People v Reed, 83 AD2d 566; Matter of John G., 82 AD2d 861.) IV. The Town Justice’s deliberate interference with appellant’s right to counsel constitutes judicial misconduct and cannot be considered harmless. (People v Felder, 47 NY2d 287; Spano v New York, 360 US 315; Powell v Alabama, 287 US 45.) V. A hearing should have been held to determine whether racially motivated peremptory challenges deprived appellant of due process and a fair trial. The failure of trial counsel to raise the issue in a timely manner as requested by appellant constituted ineffective assistance of counsel. (Batson v Kentucky, 476 US 79; People v Scott, 70 NY2d 420; People v McLucas, 15 NY2d 167; People v Claudio, 59 NY2d 556; People v Baldi, 54 NY2d 137.)

      Michael Kavanagh, District Attorney (Joan Lamb of counsel), for respondent.
    I. Defendant was not denied his right to appear and testify before the Grand Jury but voluntarily elected not to testify. (People v Mendola, 2 NY2d 270; People v Gonzalez, 115 AD2d 899; People v McCloud, 69 AD2d 957; People v Rittenhouse, 37 AD2d 866; People v Dawson, 125 AD2d 860; People v Gonzalez, 55 AD2d 656.) II. The trial court properly refused to charge the defense of justification. (People v Padgett, 60 NY2d 142; People v Watts, 57 NY2d 299; People v Astle, 117 AD2d 382; People v Cruickshank, 105 AD2d 325; People v Alston, 104 AD2d 653.) III. The proof adduced at trial sufficiently established that the victim suffered the requisite physical injury necessary to sustain his conviction for assault in the second degree. (People v McDowell, 28 NY2d 373; People v Almonte, 102 Misc 2d 950; Matter of Philip A., 49 NY2d 198; People v Rojas, 61 NY2d 726; People v Greene, 70 NY2d 860; People v Williams, 105 AD2d 465; People v Starling, 101 AD2d 704; People v Coward, 100 AD2d 628; People v Thompkins, 97 AD2d 593; People v Chesebro, 94 AD2d 897.) IV. Defendant was not deprived of effective assistance of counsel. The interference with defendant’s access to counsel for 30 days was harmless error. V. Defendant’s failure to make a timely objection to the prosecutrix’s exercise of her peremptory chailenges bars defendant from raising this issue on appeal. Defendant was not denied effective assistance of counsel. (Batson v Kentucky, 476 US 79; People v Hockett, 121 AD2d 878; People v Scott, 70 NY2d 420.)
   OPINION OF THE COURT

Per Curiam.

Defendant, while an inmate of Eastern Correctional Facility, was charged with assault, second degree, as a result of an altercation with a correction officer. Prior to trial he moved to dismiss the indictment, claiming he was denied the opportunity to appear before the Grand Jury and that he had been denied effective assistance of counsel. The motion was denied and defendant was found guilty as charged after trial. On appeal he claimed several errors in the proceedings but the Appellate Division, finding no merit in them, affirmed.

On this appeal, we find it necessary to address only defendant’s claim that he was denied effective assistance of counsel.

Defendant was arrested August 7, 1985 and arraigned later that day by the local Town Justice. While being arraigned, defendant continually failed to comply with the Judge’s orders to quiet down. As a result, he was found in contempt of court and the Judge ordered his counsel not to have contact with him for a period of 30 days following the arraignment.

The People concede that the Town Justice erred in barring defendant’s counsel from visiting his client for 30 days but contend that the error was harmless since defendant was represented at arraignment and at his trial which took place two months after the order had expired.

Defendant’s right to assistance of counsel attached at his arraignment (see, Powell v Alabama, 287 US 45, 57-59; Coleman v Alabama, 399 US 1, 17; Kirby v Illinois, 406 US 682, 688-689; People v Meyer, 11 NY2d 162, 164-165; CPL 210.15). It was not absolute but was subject to the right of the court to impose reasonable rules to control the conduct of the trial (compare, People v Narayan, 58 NY2d 904, 906, with Geders v United States, 425 US 80, 90-91). As the People concede, however, the court’s order denying defendant his constitutional right to counsel after such right had attached was purely punitive and without justification. Thus, the inquiry is whether the order constituted reversible error.

In People v Crimmins (36 NY2d 230, 238), we stated that there are some errors which are so serious that they operate to deny defendant’s fundamental right to a fair trial. In such cases the reviewing court must reverse the conviction and grant a new trial, without evaluating whether the errors contributed to the defendant’s conviction. We applied this rule to the denial of the constitutional right to counsel in People v Felder (47 NY2d 287) in reversing defendant’s conviction and ordering a new trial.

Similarly, we refuse to apply the harmless error doctrine here. The court’s ruling, entered at the time of arraignment, affected defendant’s representation in such a way that the error cannot be corrected by a new trial (see, People v Felder, supra, at 296).

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order reversed, etc.