author: Jones, J. Kaye, J.

text:
    In the Matter of Edwin Rivera, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants.
    Argued October 16, 1984;
    decided November 27, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General {Martin A. Hotvet and Peter H. Schiff of counsel), for appellants.
    I. The policy requiring female correction officers to perform pat frisks was not unreasonable as applied to a Muslim inmate in view of the important State interests in providing adequate security and equal opportunity for women to serve as prison guards and the minimal nature of the intrusion into the inmate’s free exercise of his religion. (Matter of Brown v McGinnis, 10 NY2d 531; Jones v North Carolina Prisoners’ Union, 433 US 119; Pell v Procunier, 417 US 817; Matter of Shahid v Coughlin, 83 AD2d 8, 56 NY2d 987; Bell v Wolfish, 441 US 520; Wolff v McDonnell, 418 US 539; Madyun v Franzen, 704 F2d 954; Sam’i v Mintzes, 554 F Supp 416; Smith v Fairman, 678 F2d 52; Matter of Cunningham v Coughlin, 97 AD2d 930.) II. The disciplinary record should not be expunged. (Matter of Sinclair v New York State Dept. of Correctional Servs., 91 AD2d 742; Matter of Patterson v Smith, 53 NY2d 98; Jones v North Carolina Prisoners’ Union, 433 US 119.)

      Norman P. Effman and Leigh E. Anderson for respondent.
    I. The court below correctly held that under the facts of this case, the pat frisk by a female officer of a male Muslim inmate violated religious rights secured under the Correction Law and the New York State Constitution. (Matter of Brown u McGinnis, 10 NY2d 531; Lue v English, 44 NY2d 654; Dothard v Rawlinson, 433 US 321; Forts v Ward, 621 F2d 1210; Matter of Abdullah v Smith, 115 Misc 2d 105, 96 AD2d 742; Matter of Shahid v Coughlin, 83 AD2d 8, 56 NY2d 987; LaReau v MacDougall, 473 F2d 974, 414 US 878; Mawhinney v Henderson, 542 F2d 1; Burgin v Henderson, 536 F2d 501.) II. The court below correctly ruled that the misbehavior report be nullified and expunged from respondent’s institutional records. (Sega v State of New York, 60 NY2d 183; Matter of Garfield, 14 NY2d 251.)
   OPINION OF THE COURT

Jones, J.

Under the Constitution and statutes of the State of New York, it would have been a violation of the right of a Muslim inmate to free exercise of his religious beliefs, in the limited circumstances of this case, for him to have been subjected to a random pat frisk performed by a correction officer of the opposite sex. This intrusion on the prisoner’s religious beliefs would not have been justified here by the State’s interests in maintaining prison security or in providing equal opportunity for women to serve as prison guards. It was error, however, for the courts below to have ordered that references to the incident be expunged from the inmate’s institutional records.

On October 11,1982, petitioner, Edwin Rivera, who is a Muslim and is incarcerated at the Attica Correctional Facility, was moving in formation with his company heading for a movie. He and two or three other inmates were selected at random for a pat frisk. When a female correction officer, respondent M. Ricks, approached him to conduct the frisk, Rivera objected and asked that a male officer perform the search. According to Rivera, his objection was based on his religious belief, as embodied in the Holy Qu'ran, “that all believers should be modest of their person and they shouldn’t submit to contact or lustful * * * desires, towards the opposite sex or even with your own sex”. Rivera was advised to speak with a sergeant about his objection. Sergeant Wolf was summoned and, when informed of the situation, told Rivera to submit to the frisk or return to his cell. Rivera was then taken to his cell where he was locked in. About a half hour later, he was charged in a misbehavior report filed by Officer Ricks with refusal to obey a direct order, interference with an employee, and violation of search and frisk rules.

Rivera appeared before the institution’s Adjustment Committee on October 12, 1982 where he admitted refusing to permit the frisk. The committee imposed a penalty of seven days of continuous confinement to his cell and loss of 23 days of specified privileges.

By order to show cause dated November 30,1982, Rivera commenced this article 78 proceeding against the Superintendent of the Attica Correctional Facility, Correction Officer Ricks and Sergeant Wolf, seeking an order declaring that Directive 4910 of the Department of Correctional Services, which governs frisks of inmates, is unconstitutional and expunging from his record the write-up of his refusal to submit to the frisk.

At a hearing held on February 9, 1983, Professor William L. Gohlman, a professor of Middle Eastern and Islamic History, testified that the Qu'ran forbids a Muslim from revealing his genitals to or having them touched by a member of the opposite sex other than his spouse. According to Gohlman, the Qu'ran is the “direct, literal word of God, is the foundation of all Islamic law and cannot be controverted in any way.” Gohlman testified that for a Muslim to have his body touched, even with clothing on, by a member of the opposite sex would be absolutely prohibited, shameful and a very great sin. He further indicated that this prohibition is listed in the Qu'ran among its major tenets and is “put on the same level as prayer, alms giving and the other pillars of Islam, the basis of the Islamic religion.”

Gohlman conceded that in an emergency these religious tenets may be waived if absolutely necessary, the principle being that if there is freedom to choose one must heed the prohibition but if one’s will is overcome failure to observe the prohibition is not condemned. As to the situation in which a female correction officer attempts a frisk of a male inmate, Gohlman testified that it would depend on the extent to which the prisoner is physically prevented from refusing and that the prisoner should resist to the point at which it would cause him more harm to resist than not to resist.

Abdul Mujahid Shakir, the Imam of the American Muslim Mission at Attica, testified that the Qu'ran forbids intimate physical contact between members of the opposite sex who are not married to each other. It was Shakir’s position that in a pat search the woman officer has to touch all areas of the body and would come into contact with the intimate parts, and that this would violate the Qu'ran’s admonition to guard one’s intimate parts, maintain one’s modesty, and refrain from physical contact with the opposite sex which may tend to bring about sexual arousal.

Brenda Valentine, a correction officer at Attica, testified that she had conducted over 30 pat frisks and that in performing them she doesn’t touch the genital area though she does put her hands in the vicinity. The search is conducted by patting the outer clothing over the entire length of the inmate’s torso, touching the skin only at the shirt sleeves and collar, and checking the seams and pockets of the prisoner’s clothing. She testified that there was always another officer present during these frisks though on perhaps three occasions in which she had performed them no male officer was present. When she had observed random pat frisks being conducted, 12 inmates were selected to be frisked by 12 guards of whom 8 were male officers.

Directive 4910 of the Department of Correctional Services (dated Jan. 20, 1981) was introduced in evidence at the hearing. On October 11,1982 section IV(D)(2)(b) of the directive provided that: “A Tat Frisk’ may be made on inmates to be interviewed by Departmental officials, the Board of Parole, or official visitors; entering the visiting room of a maximum or medium security facility; going to and returning from housing areas and/or outside work details; when the entire or individual area of the facility or living quarters is searched; or when there are reasonable grounds to believe an inmate is in possession of contraband.” A provision that a pat frisk “shall be conducted by an officer of the same sex as the inmate being frisked” had been deleted from the directive on June 1, 1981 after the Department promulgated Directive 2230 on May 18, 1981 which was intended to extend equal rights in employment to all employees regardless of sex. Section II of Directive 2230 provides, in pertinent part, that:

“1. All correction officers will perform the duties that are assigned to them, regardless of sex, provided however, that the following assignments will not be made to officers who are not of the same sex as the inmates:

“a. strip searches

“b. congregate shower facilities

* * *

“3. Pat frisks of inmates will be performed by officers regardless of sex.”

Supreme Court, in a memorandum and judgment dated April 5,1983, granted the petition. The court found that a pat frisk conducted by a female officer involves sufficient physical contact to violate a male Muslim’s religious beliefs which prohibit physical contact between the sexes outside of marriage. According to the court, these religious beliefs are protected by the free exercise provision of section 3 of article I of the New York State Constitution and by section 610 of the Correction Law which recognizes that prison inmates retain their rights to free exercise of religious beliefs. The court noted that these rights are subject to reasonable curtailment if necessary for proper discipline and management of the correctional facility.

After balancing the competing interests involved, Supreme Court concluded that where searches are carried out as a routine precaution or are conducted at random male correction officers could be used to pat frisk Muslims. Inasmuch as Directive 4910 had previously required that pat frisks be performed by an officer of the same sex as the inmate and still so mandates for more intrusive searches, the court found that the only security interest advanced in withdrawing this protection as to pat frisks is the avoidance of delay. This delay, according to the court, would be minimal because Muslim inmates are readily identifiable by the prayer caps which they are permitted to wear.

The court concluded that any interest a female employee may have in her job assignments would not dictate a contrary result. Having male officers available to search Muslim prisoners, the court reasoned, would serve a bona fide purpose of protecting the religious rights of inmates. Further, the requested relief would have only a very slight impact on the assignment of female officers because several officers usually accompany groups of inmates.

Accordingly, the court declared that the performance of a pat frisk of a male Muslim inmate by a female correction officer, in the circumstances of this case, violated religious rights guaranteed by the Correction Law and the New York Constitution. The court ordered that such a frisk be performed by an officer of the same sex as the Muslim prisoner in the absence of reasonable grounds to believe that the inmate possesses contraband or that there is an emergency situation. Inasmuch as the court concluded that it is not permissible to punish a prisoner for exercising a valid religious right, the court further ordered that any reference to the charges filed on October 11, 1982 or the disposition made the following day by the Adjustment Committee be expunged from petitioner’s institutional records.

On appeal by the Superintendent and the correction officers, the Appellate Division affirmed, with two Justices dissenting. The majority distinguished Madyun v Franzen (704 F2d 954 [7th Cir]), which held that a pat frisk of an Islamic male prisoner by a female prison guard did not violate the inmate’s rights under the free exercise clause of the Federal Constitution because such searches are justified by the important State interests of providing adequate prison security and equal opportunity for women to serve as prison guards. According to the Appellate Division, in New York section 3 of article I of our State Constitution and section 610 of the Correction Law evince a greater concern for religious freedom of inmates than may be found in other jurisdictions. Consequently, the court held that the inmate’s free exercise right had been violated under State law in the limited circumstances of this case.

The dissenters were of the view that there were no special circumstances to except this case from what they perceived to be the general rule that all inmates, even those with religious objections, are subject to frisk searches by correction officers of the opposite sex (citing Madyun v Franzen, 704 F2d 954, supra). According to the dissent, the mere presence of a male correction officer did not render this otherwise lawful search violative of New York law. Nor should the legality of such a search depend on whether the officer has reasonable cause to believe that the inmate possesses contraband or that emergency circumstances justify the frisk. The dissenters would have held that the State has a substantial interest in having its women guards frisk male inmates and that such frisk searches are an integral part of prison security and an important part of a prison guard’s duties.

The Superintendent and correction officers have appealed as of right to our court. We now modify the order appealed from.

Our analysis starts with the proposition that with the closing of the prison doors behind him an inmate loses, or must endure substantial limitations on, many rights and privileges he previously enjoyed, a status justified by the character of our penal system (Matter of Brown v McGinnis, 10 NY2d 531, 536; see Price v Johnston, 334 US 266, 285). Nevertheless, a prisoner does not lose all rights during incarceration but rather retains those rights that are not inconsistent with his status as an inmate or with the legitimate penological objectives of the prison institution (see Pell v Procunier, 417 US 817, 822). In the context of religious freedom, it is clear that the prisoner maintains the right to free exercise of religion under the first amendment of the Federal Constitution (LaReau v MacDougall, 473 F2d 974 [2d Cir], cert den 414 US 878; Sweet v South Carolina Dept. of Corrections, 529 F2d 854 [4th Cir]; Childs v Duckworth, 705 F2d 915 [7th Cir]; Teterud v Burns, 522 F2d 357 [8th Cir]; see Cruz v Beto, 405 US 319; Cooper v Pate, 378 US 546), although the Supreme Court of the United States has yet to delineate the breadth of this right.

Under New York law, section 3 of article I of our State Constitution provides that “[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to ail mankind”. This free exercise right has expressly been extended to those incarcerated in New York correctional facilities by section 610 of the Correction Law. In so providing, the Legislature recognized the positive effect that religion can have in rehabilitating convicts and in shaping their behavior while in prison. These provisions of New York law manifest the importance which our State attaches to the free exercise of religious beliefs, a liberty interest which has been called a “preferred right” (Matter of Brown v McGinnis, 10 NY2d 531, 536, supra).

Notwithstanding the importance of this right, it does not prevent the imposition of reasonable restrictions by prison officials (Matter of Shahid v Coughlin, 83 AD2d 8, 11-12, affd on opn below 56 NY2d 987; Matter of Brown v McGinnis, 10 NY2d 531, 535-536, supra; Correction Law, § 610), but rather such restrictions must be weighed against the institutional needs and objectives being promoted (Matter of Shahid v Coughlin, 83 AD2d, p 11, supra; see Bell v Wolfish, 441 US 520, 546; Wolff u McDonnell, 418 US 539, 556). The nature of a correctional facility, where confinement and order are necessary, is such that inmates cannot be afforded free exercise rights as broad as those enjoyed outside the prison setting.

Supreme Court found that Rivera’s Muslim beliefs compelled him to avoid contact with members of the opposite sex outside of marriage. This view was supported by the testimony of Dr. Gohlman that the Qu'ran requires Muslims to avoid such physical contact, even when clothed, but that the “sin” of such contact might be forgiven if one’s will to prevent it is violated in an emergency. Further support for Rivera’s religious belief was provided by the testimony of Shakir. Nor did respondent ever challenge the sincerity or bona fides of petitioner’s religious convictions (cf. Matter of Holy Spirit Assn. u Tax Comm., 55 NY2d 512, 526). Inasmuch as the Appellate Division affirmed Supreme Court’s findings, these factual determinations are beyond the scope of our review. Supreme Court further found that, based on Officer Valentine’s description of the manner in which pat frisks are performed, a pat frisk by a female correction officer involves physical contact which is violative of the religious creed of a male Muslim inmate. This finding, too, having been affirmed at the Appellate Division, is not reviewable in our court, there being evidence for its support in the record.

The question thus becomes whether the impingement on Rivera’s religious convictions caused by a routine pat frisk conducted by a woman officer is outweighed by a legitimate institutional need or objective of the correctional facility. The Superintendent and the correction officers assert two interests which, they contend, justify application to Muslim inmates of their policy that pat frisks be performed by all officers without regard to the officer’s sex. They support this policy on the grounds that it is necessary to maintain prison security and that it provides equal opportunity for women to serve as correction officers.

With respect to the first asserted interest, it cannot be questioned that prison administrators have a substantial interest in maintaining security in their facilities. The extraordinary difficulties of managing prisons, in which the daily activities of a large number of inmates who have been confined due to their criminal, and often violent, conduct must be supervised, are such that the maintenance of order and discipline is a critical objective. Prison officials are charged with the responsibility, among other things, to secure their institutions against escape, to prevent the transfer or possession of contraband, and to protect the safety of inmates and prison employees. To carry out these formidable tasks in the volatile setting of our correctional institutions requires that prison officials be vested with broad discretion in their formulation of security-related policies.

In the limited circumstances of the present case, however, it has not been shown that legitimate security objectives are advanced by having female correction officers randomly pat frisk Muslim male inmates. When petitioner was approached by Officer Ricks there were other male officers in the vicinity who could have performed the search. Further, Officer Valentine testified that during random frisks she had observed that 12 inmates were searched by 12 guards, of whom 8 were male officers. Supreme Court found that, based on the Department of Correctional Services’ previous prohibition on pat frisks by officers of the opposite sex and its continued policy that more restrictive searches be performed by officers of the same sex as the inmates searched, the only security interest advanced in not providing such protection for pat frisks is the avoidance of the delay required to respond to a Muslim’s objection. The court concluded that such delay would be minimal inasmuch as Muslim inmates can easily be identified by the prayer caps which they are allowed to wear and thus officers can readily determine which inmates should be frisked by male guards. Accordingly, it has not been established that security interests call for the use of female prison guards to perform random pat frisks of male Muslim inmates in violation of the letters’ religious beliefs.

The argument that the policy of having officers perform pat frisks regardless of sex is justified by the State’s interest in affording women equal opportunity to serve as correction officers, important as that objective is, does not compel a different result on the facts of this particular case. The Governor has promulgated Executive Order No. 6 which establishes that it is the policy of the State “that equal opportunity be assured in the State’s personnel system and affirmative action provided in its administration”. The order requires each State agency or department to “develop a revised written affirmative action program, where necessary, including the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity for minorities, women, disabled persons and Vietnam era veterans.” To implement this policy, the Commissioner of the Department of Correctional Services issued his own policy statement which condemns the lack of equal opportunity for all and “acknowledges and accepts [the Department’s] obligation to eliminate those forms of discrimination that exist within” the Department. According to the Superintendent and the correction officers, the Department’s amendment of Directive 4910, which had prohibited female prison guards from frisking male inmates, and its issuance of Directive 2230, which provides that pat frisks are to be performed by all officers regardless of their sex, are in furtherance of this policy.

The Department’s policy of providing equal opportunity in employment unquestionably promotes a salutary objective. We need not now decide, however, whether the State’s interest in this regard can outweigh an inmate’s right to free exercise of religion (compare Forts v Ward, 621 F2d 1210 [2d Cir]; Madyun v Franzen, 704 F2d 954 [7th Cir], supra; Smith v Fairman, 678 F2d 52 [7th Cir]; and Sterling v Cupp, 290 Ore 611). Nor need we consider whether limiting random pat frisks of Muslim inmates to officers of the same sex as the inmate searched to protect Muslim religious beliefs would be justified as a bona fide occupational prescription (see Dothard v Rawlinson, 433 US 321). In the present instance, two or three other inmates were selected for routine searches along with petitioner. Officer Ricks could have been assigned to frisk a non-Muslim prisoner while a male officer frisked petitioner. Any one correction officer does not have the absolute right to pat frisk any single inmate of his or her selection. Accommodating the religious beliefs of Muslim inmates in this instance could be attained with only a minimal impact on job assignments because, as Officer Valentine testified, routine frisks had been conducted on groups of 12 prisoners by 12 officers, 8 of whom were male. There is no proof in the record in this case that denial to Officer Ricks of the opportunity to conduct a pat frisk of Rivera frustrated the objectives of the equal opportunity policy. Thus, it has not been shown that the State’s interest in providing equal employment opportunity to women justified a pat frisk of Rivera by Officer Ricks.

Accordingly, we hold that, in the setting in which this frisk was to be made, for Officer Ricks to have conducted a routine pat frisk of Rivera would have violated his right to the free exercise of his religious beliefs guaranteed by section 3 of article I of the New York Constitution and section 610 of the Correction Law.

We turn now to consideration of the appropriate remedy to be fashioned in this case. As well as declaring that a pat frisk by Officer Ricks would have violated Rivera’s right under New York law to the free exercise of his religious beliefs and ordering that in similar circumstances such a search be performed by a guard of the same sex absent a reason to believe the inmate possesses contraband or other emergency circumstances, Supreme Court ordered that any reference to the charges and their disposition be expunged from Rivera’s records. This latter relief was inappropriate.

In view of the characteristics of the correctional system and the compelling interests of the State in the preservation of security and order within correctional facilities, the recognition and enforcement even of constitutional rights may have to await resolution in administrative or judicial proceedings; self-help by the inmate cannot be recognized as an acceptable remedy. There must, in most instances (including this case), be compliance with the orders of the correction personnel, or acceptance of the penalties properly applicable to noncompliance. The risks inescapably attendant on the refusal of an inmate to carry out even an illegal order of a correction officer are such as to require compliance at the time with the right of retrospective administrative or judicial determination as to the legality of the order.

As was noted in a similar context in Matter of Shahid v Coughlin (83 AD2d 8, 12, affd on opn below 56 NY2d 987, supra): “Inmates who object to a particular prison rule should obey the rule until such time as established procedures can effectuate a change. Any holding to the contrary would simply encourage inmates to break rules as a means of addressing their grievances and invite chaos.” The threat to prison security would be manifest were we to allow inmates to decide for themselves which orders to obey and which to ignore as violative of their rights and to act accordingly. In principle the legal situation is not unlike that in which an individual against whom an injunction has been granted must comply with the terms of the injunction or be liable for contempt for failure to do so, notwithstanding that the injunctive order is illegal. His remedy lies in judicial challenge to the injunction, not in personal refusal to obey its command. (United States v Mine Workers, 330 US 258, 293; City School Dist. v Schenectady Federation of Teachers, 49 AD2d 395, 397, mot for lv to app den 38 NY2d 820; cf. Matter of Balter v Regan, 63 NY2d 630, 631, cert den 469 US _, 53 USLW 3324.) Consequently, we cannot sanction petitioner’s refusal to submit to the frisk by expunging the incident from his files.

Accordingly, the order of the Appellate Division appealed from should be modified, without costs, to eliminate the expunging of petitioner’s institutional record and, as so modified, affirmed.

Kaye, J.

(concurring). I write separately to emphasize my own understanding that the declaratory relief is narrowly confined to the particular facts of this case, based on the record made below. This court, as well as both lower courts, have noted that the declaration is made “in the limited circumstances of this case.” Since this appeal involves a collision of important interests, shared by the State — that of inmates in the free exercise of their religious beliefs, that of correction officers in equal employment opportunity, and that of prison administrators, who must be accorded “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security” {Bell v Wolfish, 441 US 520, 547-548) — it seems desirable to underscore certain of those circumstances.

When petitioner and two or three other inmates were selected to be frisked by a female officer, a male officer was present. Petitioner asked the male officer to frisk him, on the ground that his religious beliefs forbade touching by a female, but the male officer declined. A pat frisk of the particular manner described, done by a female, would have involved physical contact violative of a major tenet of petitioner’s religious creed; that affirmed finding, which is supported by the record, is binding on this court. Conversely, respondent adduced no proof whatever that the interests of either effective prison management or equal employment opportunity would have been in the slightest impaired or threatened if the male officer who was right there had performed the pat frisk on this petitioner. Given the record, I must agree that in the circumstances the intrusion on this petitioner’s religious beliefs was not justified. Proof that requiring a male officer to pat frisk a male Muslim inmate affects equal employment opportunity or prison administration would present an entirely different situation (see Matter of Shahid v Coughlin, 83 AD2d 8, affd on opn below 56 NY2d 987).

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Simons concur with Judge Jones; Judge Kaye concurs in result in a separate opinion.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Section III(J)(2) of the directive defines a pat frisk as “a search of an inmate’s person and his clothes while the inmate is clothed, except that an inmate shall be required to remove coat, hat, and shoes. The search shall include searching into the inmate’s clothing.” Rivera makes no assertion that the pat frisk in this instance did not come within the scope of Directive 4910.

      . The directive by its terms does not apply to the Bedford Hills Correctional Facility because that institution was the subject of the Second Circuit’s decision in Forts v Ward (621 F2d 1210) which recognized certain privacy rights of female inmates.

      . Section 610 of the Correction Law provides as follows:
      “1. All persons who may have been or may hereafter be committed to or taken charge of by any of the institutions mentioned in this section, are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference.
      “2. This section shall be deemed to apply to every incorporated or unincorporated society for the reformation of its inmates, as well as houses of refuge, penitentiaries, protectories, reformatories or other correctional institutions, continuing to receive for its use, either public moneys, or a per capita sum from any municipality for the support of inmates.
      “3. The rules and regulations established for the government of the institutions mentioned in this section shall recognize the right of the inmates to the free exercise of their religious belief, and to worship God according to the dictates of their consciences, including baptism by immersion, in accordance with the provisions of the constitution; and shall allow religious services on Sunday and for private ministration to the inmates in such manner as may best carry into effect the spirit and intent of this section and be consistent with the proper discipline and management of the institution; and the inmates of such institutions shall be allowed such religious services and spiritual advice and spiritual ministration from some recognized clergyman of the denomination or church which said inmates may respectively prefer or to which they may have belonged prior to their being confined in such institutions; but if any of such inmates shall be minors under the age of sixteen years, then such services, advice and spiritual ministration shall be allowed in accordance with the methods and rites of the particular denomination or church which the parents or guardians of such minors may select; such services to be held and such advice and ministration to be given within the buildings or grounds, whenever possible, where the inmates are required by law to be confined, in such manner and at such hours as will be in harmony, as aforesaid, with the discipline and the rules and regulations of the institution and secure to such inmates free exercise of their religious beliefs in accordance with the provisions of this section. In case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section.”

      . Respondents’ contention that being pat frisked by a woman officer involves only a minimal intrusion on petitioner’s free exercise right is belied by Professor Gohlman’s testimony that such contact would be shameful and a very great sin and that the prohibition against this contact is on the same level as other major tenets of petitioner’s religion.

      . Although respondents did not raise this issue in the courts below, a new argument may be raised for the first time in the Court of Appeals if it could not have been obviated or cured by factual showings or legal countersteps in the court of first instance (American Sugar Refining Co. v Waterfront Comm., 55 NY2d 11, 25, app dsmd sub nom. New York Shipping Assn. v Waterfront Comm., 458 US 1101; Telaro v Telara, 25 NY2d 433, 439; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], §§ 161-163).


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Joseph J. Scott, Appellant.
    Argued October 17, 1984;
    decided November 20, 1984

      POINTS OF COUNSEL

      Clark J. Zimmermann for appellant.
    I. The stop of Joseph Scott’s automobile at a roving police roadblock without any objective basis constituted a violation of his Fourth Amendment rights. (Carroll v United States, 267 US 132; Almeida-Sanchez v United States, 413 US 266; United States v Brignoni-Ponce, 422 US 873; Delaware v Prouse, 440 US 648; People v Ingle, 36 NY2d 413; United States v Martinez-Fuerte, 428 US 543; People v John BB., 56 NY2d 482; Brown v Texas, 443 US 47; Camara v Municipal Ct., 387 US 523; United States v United States Dist. Ct., 407 US 297.) II. The plan of the Genesee County Sheriff dated March 5,1982 is inadequate as a basis for dispensing with the need for some objective reason for the stop of -an automobile. (Brown v Texas, 443 US 47; Almeida-Sanchez v United States, 413 US 266.) III. There is no evidence to support a finding of uniform stopping of all automobiles at the roadblock in this case.

      Ronald L. Fancher, District Attorney {Robert C. Noonan of counsel), for respondent.
    I. Promotion of highway safety, and particularly enforcement of driving while intoxicated laws, provide sufficient grounds to justify the use of checkpoints. (People v John BB., 56 NY2d 482; Breithaupt v Abram, 352 US 432; Perez v Campbell, 402 US 637; South Dakota v Neville, 459 US 553; Mackey v Montrym, 443 US 1; United States v Prichard, 645 F2d 854, 454 US 832, 1069; Pennsylvania v Mimms, 434 US 106.) II. The checkpoint procedure, as established and effectuated, was a fixed checkpoint for Fourth Amendment purposes, rather than a roving patrol. (United States v Martinez-Fuerte, 428 US 543; Delaware v Prouse, 440 US 648; People v Ingle, 36 NY2d 413; Almeida-Sanchez v United States, 413 US 266; United States v Brignoni-Ponce, 422 US 873; United States v Ortiz, 422 US 891; People v Lopez, 95 AD2d 241.) III. The affirmed finding of fact that all vehicles were intercepted by the checkpoint should not be disturbed. (People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594.)

      Robert Abrams, Attorney-General {Robert Hermann, Peter H. Schiff and Peter J. Dooley of counsel), for State of New York, amicus curiae.

    DWI roadblocks do not per se violate Fourth Amendment rights. (Delaware v Prouse, 440 US 648; Almeida-Sanchez v United States, 413 US 266; People v John BB., 56 NY2d 482, 459 US 1010; United States v Martinez-Fuerte, 428 US 543; Brown v Texas, 443 US 47; Mackey v Montrym, 443 US 1; United States v Hernandez, 739 F2d 484.)

      Scott N. Fein, Jonathan P. Nye, Michael Whiteman and Richard Emery for the New York Civil Liberties Union, amicus curiae.

    This court should not abandon the requirement that the detention of a motorist to detect excessive alcohol consumption be based upon particularized suspicion. (United States v Martinez-Fuerte, 428 US 543; Marshall v Barlow’s, Inc., 436 US 307; United States v Chadwick, 433 US 1; Stanford v Texas, 379 US 476; Marcus v Search Warrant, 367 US 717; Frank v Maryland, 359 US 360; People v John BB., 56 NY2d 482, 459 US 1010; Delaware v Prouse, 440 US 648.)
   OPINION OF THE COURT

Meyer, J.

A roadblock established pursuant to a written directive of the County Sheriff for the purpose of detecting and deterring driving while intoxicated or while impaired, and as to which operating personnel are prohibited from administering sobriety tests unless they observe listed criteria, indicative of intoxication, which give substantial cause to believe that the operator is intoxicated, is constitutionally permissible, notwithstanding that the location of the roadblock is moved several times during the three- to four-hour period of operation, and notwithstanding that legislative initiatives have also played a part in reducing the incidence of driving while intoxicated in recent years. Defendant having pleaded guilty to driving while impaired after denial of his motion to suppress the evidence obtained at the roadblock, the order of the County Court, Genesee County, affirming his conviction, should, therefore, be affirmed.

I

At about 2:00 a.m. on Saturday, September 25, 1982, defendant, while driving on Route 5 in the Town of LeRoy, came up to a roadblock established pursuant to a directive of the Sheriff of Genesee County. He was directed to pull to the side and there was requested by Chief Deputy Sheriff Maha to produce his license, registration and insurance card. Observing that defendant fumbled a bit with his wallet, that his eyes were watery and bloodshot and that there was a strong odor of alcohol, Maha asked whether defendant had been drinking. After defendant responded that he had just left a bar, he was asked to step out of his car. As he did so he was unstable on his feet and was unable successfully to perform heel-to-toe and finger-to-nose tests. Based on those facts and an alco-sensor breath screening test, which defendant agreed to take, Maha concluded that defendant was intoxicated and placed him under arrest.

The roadblock had been established pursuant to a March 5, 1982 memorandum of the County Sheriff which called attention to the deaths, injuries and losses occasioned by intoxicated drivers and the need “to employ every lawful means to deter and apprehend the drunken driver.” It quoted from the October, 1981 Report of the Governor’s Alcohol and Highway Safety Task Force the value of “systematic traffic checkpoints at known DWI and high accident locations during peak hours”, and the advisability that, “Such checks at specific sites * * * be of short duration, with an ability to move quickly to new sites to insure that the drinking driver will not be able to forecast checkpoint locations”, and noted that the “greatest risk is on weekend late evening/early morning hours, when one in every ten vehicles or less contains an intoxicated driver.” In succeeding detailed paragraphs it established procedures for site selection, lighting and signs; avoidance of discrimination by stopping all vehicles, or every second, third or fourth vehicle; location of screening areas off the highway to which vehicles would be directed; the nature of the inquiries to be made, with specific direction that unless the operator’s appearance and demeanor gave cause to believe him or her intoxicated sobriety tests not be given. It listed the factors to be considered and stated that neither the odor of alcohol alone nor any one of the listed factors would suffice as a basis for sobriety tests. It also directed that checkpoint sites be prescreened and that from two to four locations be used during a four-hour period.

Under that procedure roadblocks were established once each month between midnight and 3:00 a.m., at locations selected in advance by senior personnel. Of the predetermined sites, four had been selected for use on September 25, 1982, the roadblock at each location being maintained for some 20 to 30 minutes before moving on to the next. Defendant was stopped at the third location in use that night. At that location warning signs were set up on the shoulders facing traffic from both directions some 300 feet in advance of the checkpoint, two police vehicles exhibiting flashing roof lights were placed so that their headlights illuminated the signs, and flares were placed in the center of the road. The checkpoint was manned by 10 persons, 6 from the Sheriff’s office and 4 from the auxiliary police, and all vehicles approaching from either direction were stopped. In addition, two patrol cars were stationed in the area to follow and observe for possible violations any vehicle that avoided the roadblock by making a U-turn.

Defendant moved to suppress the evidence obtained at the roadblock. After a hearing the Town Justice denied the motion, finding that it had been operated in a uniform, nonarbitrary and nondiscriminatory manner. The County Court affirmed, finding the State’s interest in curbing drunken drivers great and the operation of the roadblock sufficient to allay feelings of fright or annoyance and to circumscribe sufficiently the discretion of the personnel engaged in the operation. On appeal to this court defendant argues that deterrence is an improper purpose, that a temporary roadblock is constitutionally impermissible, and that it has not been shown that less intrusive means of enforcement would not be effective. We affirm.

II

There is, of course, no question that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment (People u John BB., 56 NY2d 482, cert den 459 US 1010; People v Ingle, 36 NY2d 413; United States v Martinez-Fuerte, 428 US 543, 556; see Berkemer v McCarty, 468 US _, 104 S Ct 3138, 3149; Delaware v Prouse, 440 US 648), but it is also true that there is only a diminished expectation of privacy in an automobile (United States v Martinez-Fuerte, supra, at p 561; see People v Belton, 55 NY2d 49, 53; United States v Knotts, 460 US 276, 281; United States v Chadwick, 433 US 1, 11-13) and that individualized suspicion is not a prerequisite to a constitutional seizure of an automobile which is “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers” (see Brown v Texas, 443 US 47, 51; Delaware v Prouse, 440 US 648, 663, supra; United States v Martinez-Fuerte, supra, at pp 558-562).

The permissibility of a particular practice is a function of its “reasonableness,” which is determined by balancing its intrusion on the Fourth Amendment interests of the individual involved against its promotion of legitimate governmental interests (People v John BB., supra, at p 487; United States v Villamonte-Marquez, 462 US 579; Delaware v Prouse, supra, at p 657). Of importance in that analysis are the governmental interest involved and the effect of the procedure in relation to it, on the one hand, and, on the other, the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out.

The importance of the governmental interest here involved is beyond question. “The carnage caused by drunk drivers is well documented and needs no detailed recitation here” (South Dakota v Neville, 459 US 553, 558; see, also, Mackey v Montrym, 443 US 1, 17-18, n 9; Presidential Commission on Drunk Driving, An Interim Report to the Nation [1982]; Report of Governor’s Alcohol and Highway Safety Task Force [1981]; Drunk Driving Reform in New York State, 1980-1984, Report of the Subcommittee on Drunk Driving of the Assembly Transportation Committee; L 1981, ch 910, § 1 [“Because of the persistence of the problem, it is essential that the state take further steps to protect those who make use of roads from the needless deaths, injuries and property damage resulting from drunk driving”]; Ifft, Curbing the Drunk Driver Under the Fourth Amendment: Constitutionality of Roadblock Seizures, 71 Georgetown LJ 1457, n 1).

Moreover, in light of the specific procedures devised and promulgated to law enforcement personnel by the head of their department, the Sheriff, and the way in which the particular roadblock was being operated when defendant was stopped, the courts below could properly conclude that it did not intrude to an impermissible degree upon the privacy of motorists approaching the checkpoint, that it was being maintained in accordance with a uniform procedure which afforded little discretion to operating personnel, and that adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint were in operation (People v Peil, 122 Misc 2d 617; State v Deskins, 234 Kan 529; Little v State, 300 Md 485; State v Coccomo, 177 NJ Super 575; State v Shankle, 58 Ore App 134; cf. People v Ingle, 36 NY2d 413, supra; State ex rel. Ekstrom v Justice Ct., 136 Ariz 1; People u Bartley, 125 Ill App 3d 575; State v Hilleshiem, 291 NW2d 314 [Iowa]; Commonwealth v McGeoghegan, 389 Mass 137; State v Olgaard, 248 NW2d 392 [SD]). The fact that the plan contemplated situations in which not every car would be stopped did not affect its validity in view of the specific nondiscriminatory pattern of selection it called for (People v Estrada, 68 Ill App 3d 272, cert den 444 US 968; State v Shankle, supra) and of the reasonableness of allowing some cars to pass when traffic became congested (United States v Prichard, 645 F2d 854, 857; People v Lust, 119 Ill App 3d 509).

Nor is the plan invalid because of its deterrent purpose, the shifting of checkpoints after short periods of time, or the question raised by defendant concerning its efficiency.

The value of roadblocks in decreasing drunk driving is attested by both the United States Department of Transportation and the Governor’s Alcohol and Highway Safety Task Force. A 1983 paper on Safety Checkpoints For DWI Enforcement issued by the Department of Transportation’s National Highway Traffic Safety Administration’s Office of Alcohol Countermeasures emphasizes the importance of informing the public about DWI checkpoint operations as the chief means of deterring driving while intoxicated {id., at p 26), and the Governor’s Task Force found “that the systematic, constitutionally conducted traffic checkpoint is the single most effective action in raising the community’s perception of the risk of being detected and apprehended for drunk driving” (Report, at p 103). Moreover, the Supreme Court has held deterrence to be a legitimate governmental purpose not only with respect to legislation (South Dakota v Neville, 459 US, at p 559, supra; Mackey v Montrym, 443 US, at p 18, supra; see Delaware v Prouse, 440 US, at p 660, supra), but also with respect to checkpoint stops (United, States v Martinez-Fuerte, 428 US, at p 557, supra; see United States v Villamonte-Marquez, 462 US, at p_, 103 S Ct 2573, 2579, supra). We conclude, therefore, as did the Maryland Court of Appeals in Little v State (supra) (see, also, State v Shankle, 58 Ore App 134, supra) that deterrence by fear of apprehension is a constitutionally proper means of keeping drunk drivers off the highways, though it may not be with respect to pedestrians (see People v Johnson, 63 NY2d 888).

Nor is constitutionality affected by the shifting and temporary nature of the checkpoints. The fact that the Supreme Court has approved permanent roadblocks but disapproved roving patrol stops is not determinative. What is critical is the intrusiveness of the checkpoint in relation to the governmental purpose involved. The subjective effect upon a vehicle driver approaching a roadblock is unrelated to whether it is permanent or was established but a few minutes before the driver approached it; in either instance his or her observation of it will be measured in minutes if not seconds. The likelihood of there being the kind of fright or annoyance that invalidates a random stop made by a roving patrol is obviated in the case of a temporary checkpoint by the visible signs of authority which the checkpoint entails — signs announcing the purpose, lighting, and identifiable police vehicles and the observable fact that there is a uniform system for stopping cars (United States v Hernandez, 739 F2d 484; Little v State, supra). The only subjective difference between temporary and permanent checkpoints is that because its location is known in advance the latter can be avoided entirely by using a different route, but that difference is minimal as concerns anxiety, especially since a temporary checkpoint can also be avoided. Of greater importance on the other side of the equation is the fact that both the detection and deterrence purposes would be adversely affected, if not forestalled entirely, were drunk driving checkpoints required to remain in one place, the known and permanent location of the checkpoint making it easily avoidable.

Nor, finally, is there sufficient question about the productivity of DWI checkpoints to require invalidation of the procedure. The contrary argument is based on the effectiveness of the procedure as a means of apprehension and ignores entirely its deterrent effect. There can be no question that substantial reductions have occurred since 1980 in the deaths, injuries and damage resulting from drunken driving. Thus, the Report of the Subcommittee on Drunk Driving of the Assembly Transportation Committee (at p 2) contains findings that highway fatalities from 1980 to 1983 decreased by 21%, while the risk of being in an accident, as measured by vehicle miles traveled, increased by 5.5%; alcohol-involved fatal accidents decreased 25% from 1981 to 1983; all accidents have declined by less than 1.5% since 1980, while reported alcohol-involved accidents have fallen at almost ten times that rate (14.5%); accidents during bar hours have declined 21.3% since 1980, while nonbar hour accidents actually have increased 3.6%; and fatal accidents during bar hours have decreased 33% since 1980, while nonbar hour fatal accidents have decreased only 11%. The extent to which those results stem from legislative reforms during that period as distinct from the deterrent effect of roadblocks and other educational and public information programs aimed at combatting the problem is not revealed, but in our view is not of constitutional moment. It is enough that such checkpoints, when their use becomes known, do have a substantial impact on the drunk driving problem (Little v State, 300 Md, at p 504, supra). The State is entitled in the interest of public safety to bring all available resources to bear, without having to spell out the exact efficiency coefficient of each component and of the separate effects of any particular component (cf. Mackey v Montrym, 443 US, at p 19, supra). There being a reasonable basis for concluding that considering both its detection and its deterrence effect, the DWI checkpoint procedure in question is a valuable component of the program to control drunk driving, we conclude that it is a sufficiently productive mechanism to justify the minimal intrusion involved.

For the foregoing reasons, the order of the County Court, Genesee County, should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur.

Order affirmed.

      . The guidelines called for a distance of 500 to 1,000 yards but the courts below found the change to have been approved by the Sheriff.

      . Defendant disputes that all vehicles were stopped, but there being affirmed findings to that effect which have support in the record, the issue is beyond our review.

      . The brief of amicus New York Civil Liberties Union states on the basis of a September, 1983 Report of the Driving While Intoxicated Unit of the New York City Police Department that less than Vio of 1% of the motorists stopped were arrested for driving under the influence of alcohol.

      . The Civil Liberties Union brief points to the sentence at page 6 of the Report of the Assembly Subcommittee on Drunk Driving, stating that “highly publicized local enforcement efforts, such as random roadblocks, have prompted civil libertarians to warn of Orwellian intrusions into individual privacy,” and notes that such roadblocks were not a part of the legislative package. The Legislature is, of course, free to enact procedures authorizing such roadblocks and establishing procedures to be followed (e.g., Montana Code Ann, § 46-5-503; South Dakota Codified Laws Ann, § 32-33-12; Wyoming Stats Ann, § 7-17-103; and see State v Deskins, 234 Kan 529, at p 543, suggesting adoption of minimum uniform standards for roadblocks by the Legislature) or to proscribe the use of DWI roadblocks, if it sees fit to do so (cf. Ifft, 71 Georgetown U 1457, at p 1459, n 5). Its failure to do either is, however, of no significance in the determination of the constitutional validity of the procedure under consideration.


text:
    The People of the State of New York, Appellant, v Eugene Carter, Respondent.
    Argued October 12, 1984;
    decided November 27, 1984

      POINTS OF COUNSEL

      Barry M. Donalty, District Attorney {Jay M. Cohen of counsel), for appellant.
    I. The trial court erred as a matter of law when it granted defendant’s motion to set aside the verdict. (People v Sabella, 35 NY2d 158; People v Swerdlow, 11 NY2d 140; People v Salemi, 309 NY 208, 350 US 950; People u Collins, 72 AD2d 431; People v Pastore, 46 AD2d 870; People v Montanez, 41 NY2d 53; United States v Beran, 546 F2d 1316, 430 US 916; United States v Freeman, 498 F2d 569; People v Leyra, 1 NY2d 199; People v Goggins, 34 NY2d 163, 419 US 1012.) II. The court below incorrectly concluded that the trial court could ignore CPL 330.30 and without adequate cause reverse the decision it made one month earlier as the trier of the facts. (People v Gardella, 55 AD2d 607; People v O’Brien, 86 Misc 2d 139; Herring v New York, 422 US 853; People v Olsen, 34 NY2d 349; United States v Provenzano, 521 F Supp 403, 681 F2d 810; People v Warren, 80 AD2d 905; United States v Hockridge, 573 F2d 752, 439 US 821; People v Greenfield, 70 AD2d 662; United States v Herrera, 407 F Supp 766; People ex rel. Imbruglia v Jackson, 8 AD2d 651, 9 NY2d 767.)

      Frank J. Nebush, Jr., Public Defender (.Edward Francis Gonciarz of counsel), for respondent.
    I. The trial court did not commit a reversible error when it set aside its initial finding of defendant’s guilt and dismissed the indictment. (People v Benzinger, 36 NY2d 29; People v Carter, 97 AD2d 964; People ex rel. Imbruglia v Jackson, 8 AD2d 651, 9 NY2d 767; People v Lemmons, 270 App Div 828; People v Paulides, 88 Misc 2d 1061; Matter of O’Connor v Weinfeld, 47 Misc 2d 228; Stein v New York, 346 US 156; United States v Smith, 331 US 469; People v Salemmo, 38 NY2d 357; Stuart-Olver-Holtz, Inc. v Green, 49 AD2d 1003.) II. Due deliberation did not precede the trial court’s initial finding of defendant’s guilt. (United States v Rebhuhn, 109 F2d 512, 310 US 629; United States v Minieri, 303 F2d 550, 371 US 847.) III. The evidence to convict defendant was insufficient; his defense of justification was not rebutted by the prosecution. (People v Banks, 59 AD2d 649; People v Steele, 26 NY2d 526.)
   OPINION OF THE COURT

Meyer, J.

A Trial Judge who has rendered a guilty verdict after a nonjury trial has neither inherent power nor statutory authority to reconsider his factual determination. Although he may correct clerical or ministerial errors, he is without authority to reassess the facts and change a guilty verdict to not guilty. The order of the Appellate Division should, therefore, be reversed, defendant’s motion to set aside the verdict denied and the case should be remitted to Oneida County Court for sentencing.

I

On the afternoon of April 4, 1981, two Utica police officers in an unmarked patrol car saw James Spann apparently trying to use the police call phone. Spann shouted to the officers that defendant, who was standing across the street, had a gun and was going to fire. Although the officers called to defendant to halt, he ran to a car, got in and drové away. The officers pursued and after about three blocks saw a handgun being thrown from the driver’s window of defendant’s car. One of the officers alighted to retrieve the weapon. The other then resumed the chase for several minutes, until defendant voluntarily stopped his car and was arrested.

Indicted for criminal possession of a weapon in the third degree, defendant waived his right to a jury and was tried before a Judge of the Oneida County Court. Conflicting evidence was offered during trial by Spann, defendant, and Theresa Warren, a witness called by defendant. Spann testified that he intended to ask defendant whether there was an affair going on between defendant and Spann’s wife, but defendant slapped him across the face and pulled out a small handgun before Spann had a chance to ask any question. Spann then removed a knife from his own pocket and ran to the call box to telephone the police. Defendant, on the other hand, testified that Spann kept badgering and grabbing him until he hit Spann to get him to stop. At that moment, defendant felt something fall and strike his left foot, which turned out to be the gun. After picking up the weapon, defendant saw Spann talking to the police and pointing at him. Defendant testified that this caused him to panic, drive off and throw the gun out of the car window. Thus, the theory of the defense was that defendant was justified in picking up the gun for self-protection and that his possession before he threw it away was temporary and innocent.

Although there was testimony that a number of people were present during the incident, only one, Ms. Warren, called by defendant, testified at trial. Her testimony was, however, so equivocal as not to be helpful in resolving whether defendant had drawn the gun from his pocket or merely retrieved it from the ground. Aside from Spann and the two arresting officers, the only prosecution witness was a police department ballistics expert who testified that the gun was operable with the bullets that were found in it when it was retrieved.

After summations by both counsel, the County Judge announced, without elaboration, that “The verdict of this Court is that the Defendant is guilty of criminal possession of a weapon in the third degree”, and fixed a date for sentencing. On the sentencing day, however, defendant’s counsel moved to set aside the verdict on the grounds that guilt had not been proven beyond a reasonable doubt and that the verdict had been rendered without due deliberation. In response, the prosecutor argued that there was adequate deliberation and that the evidence was legally sufficient and that, therefore, CPL 330.30 provided no basis for setting aside the verdict.

The Trial Judge granted the motion, set aside the verdict and dismissed the indictment. His bases for doing so were that upon review of the evidence he believed that Spann’s testimony did not prove beyond a reasonable doubt the defendant’s illegal possession of the pistol, and that although there were other persons present at the scene who might have established beyond a reasonable doubt which version of the facts — defendant’s or Spann’s — was true, no reason had been given why those persons were not called as witnesses. The order entered in furtherance of that decision recited that defendant’s motion had been made under CPL 330.30.

On the People’s appeal to the Appellate Division from the dismissal, that court made no mention of CPL 330.30, but affirmed nevertheless, holding that the Trial Judge had “inherent power * * * to correct any errors in its own rulings, provided such correction is made prior to the termination of the proceedings.” On their further appeal by leave of a Judge of this court, the People argue that the Trial Judge had neither statutory nor inherent authority to set aside the verdict and defendant, seeking to sustain the order of the courts below, contends that the court, having announced a verdict immediately, without statement of reasoning, failed properly to “consider the case” as required by CPL 320.20 (subd 3, par [d]). We reverse.

II

CPL 330.30 specifies the grounds upon which a Trial Judge may set aside or modify a guilty verdict before sentence. The only ground arguably relevant to the present case is that stated in subdivision 1: “Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court” (emphasis supplied). The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact (CPL 470.15, subds 1, 3), to reverse or modify a judgment when the verdict is against the weight of the evidence (CPL 470.15, subd 5), and to reverse “[a]s a matter of discretion in the interest of justice” (CPL 470.15, subds 3, 6). Although the interest of justice power permits an intermediate appellate court to vacate a conviction as to which reversal is not warranted on the law or the facts when “there is a grave risk that an innocent man has been convicted” (People v Kidd, 76 AD2d 665, 668, mot for lv to app dsmd 51 NY2d 882; accord People v Crudup, 100 AD2d 938, 939; People v Lawrence, 111 Misc 2d 1027,1033), Trial Judges have no such power. Nor are they authorized to set aside a verdict as against the weight of the evidence. Such power existed under the Code of Criminal Procedure which permitted the Trial Judge to grant a new trial when the verdict was “clearly against evidence” (Code Crim Pro, § 465, subd 6; see People v Ramos, 33 AD2d 344), but that power was not carried forward into the Criminal Procedure Law.

The power granted a Trial Judge by CPL 330.30 (subd 1) to set aside a verdict when reversal as a matter of law by an appellate court would be required is, as concerns proof of guilt, therefore, normally limited to a determination that the trial evidence was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted (CPL 470.15, subd 4, par [b]). Additionally, even though the evidence meets the statutory test for legal sufficiency (CPL 70.10, subd l), there are instances in which an appellate court can decide that the evidence is inadequate as a matter of law to prove the defendant’s guilt beyond a reasonable doubt (see, e.g., People v Reed, 40 NY2d 204, 206-209 [testimony of sole prosecution witness essentially exculpatory]). Thus, Carter’s conviction could have been set aside under CPL 330.30 only if based upon insufficient evidence or evidence which as a matter of law was inadequate to prove guilt beyond a reasonable doubt.

Review of the instant record reveals no such defect in the proof. James Spann’s testimony that defendant drew the gun from his pocket, when coupled with the police testimony that the gun was loaded and operable, was sufficient, if accepted as true, to establish every element of the crime with which defendant was charged (see CPL 70.10, subd 1). There was nothing so clearly exculpatory or so inherently contradictory or unbelievable in the People’s proof that it could be regarded as insufficient as a matter of law (see People v Reed, 40 NY2d 204). And while there was testimony that others were on the sidewalk where the incident occurred, there is nothing in this record, as there was in Reed (40 NY2d, at pp 206, 209), to establish that any of them could bear witness to where the gun came from. CPL 330.30, therefore, furnished no basis for setting aside the verdict.

Ill

Although the Appellate Division apparently agreed that there was no statutory predicate for the action taken by the County Judge, it sustained his action as an exercise of inherent power to change the verdict. If Trial Judges possess inherent power of sufficient scope to sustain the Trial Judge’s order, that order is presumably as unreviewable as any other dismissal after a not guilty verdict in a criminal case (see, generally, People v Sabella, 35 NY2d 158). But if the Trial Judge was without such power, this court may take appropriate action without violating defendant’s double jeopardy rights because “there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand” (People v Brown, 40 NY2d 381, 391, cert den 433 US 913).

It is settled that in criminal as well as in civil cases courts possess “‘inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth’ ” (People v Minaya, 54 NY2d 360, 364, quoting from Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550-551). But while a Trial Judge may correct a formal error in a verdict, such as an inaccurate statement of the verdict intended on a particular count or an incorrect recording of the verdict in the minute book (cf. People u Minaya, supra), the power does not extend to the alteration of a guilty verdict to one of not guilty based on a reassessment of the facts, for that is a correction of substance, not a mere ministerial act (see Corr v Hoffman, 256 NY 254, 268; Herpe v Herpe, 225 NY 323, 327; People v Pastore, 46 AD2d 870).

The cases cited by the Appellate Division in support of its contrary conclusion all predated enactment of the Criminal Procedure Law. The Code of Criminal Procedure contained no definition of conviction, and the case law decided under it, while recognizing the equivocal meaning of the word, generally held that conviction did not occur until after adjudication of guilt and the imposition of sentence (Matter of Keogh v Wagner, 15 NY2d 569, affg 20 AD2d 380; Matter of Lewis v Carter, 220 NY 8, 16). Under the Criminal Procedure Law, however, the verdict clearly marks the termination of the trial (CPL 1.20, subds 11,12), and “conviction” occurs upon the entry of a verdict of guilty, though sentence and judgment be later imposed and entered (CPL 1.20, subds 13,14,15; see Matter of Gunning v Codd, 49 NY2d 495).

The definitions in CPL 1.20 are applicable to jury and nonjury trials alike (CPL 320.20, subd 4). That fact and the facts that CPL 320.20 (subds 2, 3, par [d]) require the court trying a nonjury case to “render a verdict,” and that CPL 330.30, which details the power of that court “after rendition of a verdict of guilty and before sentence,” contains no authorization for a change in the factual determination embodied in the verdict, strongly suggests that the Legislature did not intend a Judge trying a nonjury case to have the power to do so. Additional evidence of legislative intent, if such be needed, exists in its refusal to carry forward into the Criminal Procedure Law the previously recognized power of the Trial Judge to set aside a verdict as against the weight of the evidence. Were we to recognize such an inherent power in a Trial Judge in nonjury cases, that would mean that although he is in no better position to weigh the evidence in one case than in the other, he would be empowered to do so in nonjury cases but not after a jury verdict. We perceive no reason for according less finality to the verdict of a Trial Judge when sitting as “the exclusive trier of all issues of fact” (CPL 320.20, subd 2) than to a jury verdict.

IV

Nor was the original verdict defective because the court failed to comply with the requirement to “consider the case” (CPL 320.20, subd 3, par [d]). The record indicates that the entire trial of this matter took a total of approximately four hours on two consecutive days. Virtually the only issue presented by the evidence, as the court later noted, was whether to believe the defendant’s testimony or that of James Spann, and that credibility question was adequately highlighted by the attorneys’ summations, coming as they did immediately after the presentation of evidence. Moreover, the Trial Judge is no more required to state the factual basis for his verdict than is a jury (People v Shufford, 97 AD2d 777).

The Judge’s subsequent concern about other possible witnesses amounted to no more than speculation about possible evidence which defense counsel had not shown to exist and which, in any event, could well have been as equivocal as the testimony of Ms. Warren. In short, the guilty verdict rendered by the Trial Judge was not marked by any error of law.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to set aside the verdict denied, and the case remitted to Oneida County Court for sentencing.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur.

Order reversed, etc.

      . “ ‘Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.”

      . All except Matter of O’Connor v Weinfeld (47 Misc 2d 228) are distinguishable on the further ground that they concerned motions to dismiss an indictment or for an order of observation of an incompetent defendant, rather than the rendition of a verdict. The theory of Matter of O’Connor, that the trial did not end until pronouncement of sentence, is answered in the text of this opinion.

      . Such benefit as arises from the collegial consideration in which the members of a jxury engage is balanced by the Judge’s training and experience in considering evidence and making factual determinations and, in any event, is an insufficient reason for importing the uncertainty that would be introduced by the recognition of an inherent power to change the substance of a verdict once rendered.


author: Per Curiam.

text:
    Margaret H. Patrowich, Appellant, v Chemical Bank, Defendant, and Harold D. Corney, Respondent.
    Argued October 11, 1984;
    decided November 29, 1984

      POINTS OF COUNSEL

      Robin J. Arzt for appellant.
    Defendant-respondent Corney was plaintiff-appellant’s employer under the age and sex antidiscrimination statutes. (Obradovich v Federal Reserve Bank, 569 F Supp 785; Jeter v Boswell, 554 F Supp 946; Jones v Metropolitan Denver Sewage Disposal Dist. No. 1, 537 F Supp 966; Rimedio v Revlon, Inc., 538 F Supp 1380; Kelly v Richland School Dist. 2, 463 F Supp 216; Compston v Borden, Inc., 424 F Supp 157; York v Tennessee Crushed Stone Assn., 684 F2d 360; Coffin v South Carolina Dept. of Social Servs., 562 F Supp 579; Barkley v Carraux, 533 F Supp 242; Marshall v Arlene Knitwear, 454 F Supp 715, 608 F2d 1369.)

      Kenneth J. Kelly and John B. Wynne for respondent.
    Corney is not an “employer” as that term is used in the State Human Rights Law or the Equal Pay Act. (Matter of Board of Higher Educ. v Carter, 14 NY2d 138; Hart v Sullivan, 84 AD2d 865, 55 NY2d 1011; McBride v General Ry. Signal Co., 96 AD2d 1145; Marshall v Dell’s Dodge Corp., 451 F Supp 294; Koster v Chase Manhattan Bank, 554 F Supp 285; Donovan v Sabine Irrigation Co., 531 F Supp 923, 695 F2d 190; Martin v Easton Pub. Co., 478 F Supp 796.)
   OPINION OF THE COURT

Per Curiam.

A corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination based on age or sex under New York’s Human Rights Law (Executive Law, art 15) or its Labor Law (§ 194) or under the Federal Age Discrimination in Employment Act (29 USC § 623) or Equal Pay Act (29 USC § 206, subd [d]) if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others. The order of the Appellate Division insofar as it dismisses the complaint against defendant Corney should, therefore, be affirmed, with costs.

The Human Rights Law definition of employer (Executive Law, §292, subd 5) relates only to the number of persons employed and provides no clue to whether individual employees of a corporate employer may be sued under its provisions. The contrary is, however, suggested by subdivision 3-b of section 296, which makes it a discriminatory practice for “any real estate broker, real estate salesman or employee or agent thereof” to make certain representations, for it indicates that the Legislature differentiated that provision from the general definition of “employer.” Plaintiff cites Hart v Sullivan (84 AD2d 865, affd 55 NY2d 1011) and McBride v General Ry. Signal Co. (96 AD2d 1145), but those cases concern only the employer’s responsibility for discriminatory acts of its employee and, therefore, are not authority to the contrary.

Plaintiff fares no better under article 6 of the Labor Law. Although the definition in subdivision 3 of section 190 of “employer” provides no clue, we have recently held that the provisions of section 198-a subjecting corporate officers to criminal sanctions for violation of the article indicates a legislative intent that they not be subject to civil liability (Stoganovic v Dinolfo, 61 NY2d 812, affg 92 AD2d 729).

The question is a closer one under the Federal statutes. The Equal Pay Act defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee” (29 USC § 203, subd [d]), and the Age Discrimination Act defines the word to mean “a person engaged in an industry affecting commerce who has twenty or more employees [during a specified period] * * * The term also means (1) any agent of such person.” (29 USC § 630, subd [b].) We assume without deciding that an Age Discrimination action can be maintained in a State court (see 29 USC § 633a, subd [c] [“Any person aggrieved may bring a civil action in any Federal district court”]; cf. Gulf Offshore Co. v Mobil Oil Corp., 453 US 473, 479). We conclude, however, that the weight of Federal authority is that “economic reality” governs who may be sued under both statutes and that a corporate employee such as defendant Corney, who, plaintiff concedes, is one of approximately 800 vice-presidents of Chemical Bank and has not been shown to have any ownership interest or power to do more than carry out personnel decisions made by others is not individually subject to suit under either statute. Cases supporting that conclusion are Carter v Dutchess Community Coll. (735 F2d 8,14 [“whether the alleged employer could hire and fire the worker, control work schedules and conditions of employment, determine the rate and method of payment, and maintain employment records”]); Donovan v Agnew (712 F2d 1509, 1514 [“corporate officers with a significant ownership interest who had operational control of significant aspects of the corporation’s day to day functions, including compensation of employees”]); Donovan v Sabine Irrigation Co. (695 F2d 190,195, cert den sub nom. Alberding v Donovan, 462 US 1207, reh den 463 US 1249 [“pervasive control over the business and financial affairs”]); York v Tennessee Crushed Stone Assn. (684 F2d 360, 362 [“supervisory or managerial employee to whom employment decisions have been delegated”]); Marshall v Arlene Knitwear (454 F Supp 715, 721, affd in part and revd in part 608 F2d 1369 [“substantial ownership interest in and acted as an agent of the employer”]); see Coffin v South Carolina Dept. of Social Servs. (562 F Supp 579); Martin v Easton Pub. Co. (478 F Supp 796). Although there are District Court decisions holding supervisory employees individually liable (Obradovich v Federal Reserve Bank, 569 F Supp 785, 788-789 [“supervisory employees and employees who ‘participated in the decision making process that forms the basis of the alleged discrimination’ ”]; Koster v Chase Manhattan Bank, 554 F Supp 285, 290 [“immediate supervisor * * * (who) reviewed her work and made recommendations concerning such personnel related decisions as salary and promotion”]; Barkley v Carraux, 533 F Supp 242, 245 [“department managers of that corporation”]; Compston v Borden, Inc., 424 F Supp 157, 158 [“supervisor of the maintenance department”]), we decline to follow them in light of the controlling higher Federal authority cited above.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order affirmed, with costs.

      . Plaintiff’s appeal as against defendant Chemical Bank was dismissed for nonfinality (62 NY2d 801).

      . Some of the above decisions were made under the Civil Rights Act definition (42 USC § 2000e, subd [b]) but are applicable to the present decision because, except as to number of employees, that definition is the same as that of the Age Discrimination in Employment Act (29 USC § 630, subd [b]).


text:
    The People of the State of New York ex rel. George Thorpe, Appellant, v Martin Von Holden, as Director of Rochester Psychiatric Center, et al., Respondents.
    Argued October 16, 1984;
    decided November 29, 1984

      POINTS OF COUNSEL

      Edward, J. Nowak, Public Defender {Brian Shiffrin of counsel), for appellant.
    The court below, having found that George Thorpe is being detained at the Rochester Psychiatric Center two years past the expiration of the last lawful order for his commitment, committed reversible error in holding that Thorpe is not entitled to release upon a writ of habeas corpus. (People ex rel. Jacobs v Director of Gowanda State Hosp., 19 AD2d 858, 14 NY2d 663; People ex rel. Granskofski v Whitehead, 10 AD2d 801, 8 NY2d 962; Alfenbaum v State of New York, 6 AD2d 988, 6 NY2d 736; People v Crawford, 94 AD2d 950; People v Graham, 55 NY2d 144; People ex rel. Logatto v Hanes, 93 AD2d 676; Matter of Sherman, 98 Misc 2d 431.)

      Robert Abrams, Attorney-General {Julie S. Mereson and Peter H. Schiff of counsel), for respondents.
    Appellant should not be released before the court determines whether he is “mentally ill” or has a “dangerous mental disorder” even if there were some procedural errors made in the application process to retain him. (People ex rel. Logatto v Hanes, 93 AD2d 676; People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334; Matter of Miller, 46 AD2d 999; Matter of Torsney, 47 NY2d 667; Matter of Rochester Gas & Elec. Corp. v Maltbie, 272 App Div 162; Bolton v Harris, 395 F2d 642; Jones v United States, 463 US 354; People v Escobar, 61 NY2d 431; Baxstrom v Herold, 383 US 107.)
   OPINION OF THE COURT

Meyer, J.

It is the obligation of the Commissioner of Mental Health with respect to a criminal offender found not guilty by reason of mental disease or defect and committed to the custody of the Commissioner pursuant to CPL 330.20 to begin proceedings for retention or release within the time required by statute; after a demand for a hearing, to bring the matter on promptly for hearing; and, as a condition of further retention, to establish that the offender has a dangerous mental disorder or is mentally ill. Habeas corpus is a proper proceeding for testing the Commissioner’s right to retain such a person in custody when proceedings have not been brought or hearings held in compliance with the time schedule established by the section. Under the peculiar circumstances of the instant case, however, there being evidence before the court indicative of present dangerous mental disorder, the order of the Appellate Division will be reversed and the matter remitted to Monroe County Court with directions to order relator’s release unless, within 10 days after service with notice of entry of the order entered by the County Court on this court’s remittitur, a hearing pursuant to CPL 330.20 (subd 8) has been begun, and unless such hearing be held on successive court days without substantial interruption until concluded.

I

On January 12, 1979, petitioner, George Thorpe, was committed to the custody of the Department of Mental Health, pursuant to the provisions of CPL 330.20, he having been found not guilty of assault in the second degree by reason of mental disease or defect. He was transferred to the Rochester Psychiatric Center, where he is presently confined. CPL 330.20 was amended effective September 1, 1980 by the Insanity Defense Reform Act of 1980 (L 1980, ch 548). Section 13 of that Act made the procedures it established applicable to any defendant confined under the provisions of the prior section and required that within one year of September 1, 1980, the Commissioner apply for a retention order with respect to such person.

On August 28,1981, an application, returnable September 21, 1981, for a first retention order was made and served upon Thorpe, among others, but not on his attorney. By letter forwarded by Thorpe on or about September 16, 1981, he requested a hearing on the application. No hearing was held, apparently because an order authorizing retention for a period not to exceed one year had been signed by the County Judge prematurely on September 1, 1981. The September 1, 1981 order was never entered, however, and although the Act required that each subsequent retention order application be made to the court “at least thirty days prior to the expiration of the period prescribed” in the prior order (CPL 330.20, subd 9), application for a second order of retention as to Thorpe was not made until February 28,1983, returnable March 18,1983.

By petition returnable March 17, 1983, Thorpe then commenced this habeas corpus proceeding. The Commissioner’s return asserted as an affirmative defense Thorpe’s waiver of the right to a hearing in that the Public Defender, Thorpe’s attorney, though requested by the Mental Health Information Service to do so, had failed to schedule a hearing. After argument before the County Court, but without an evidentiary hearing, the petition was dismissed. On appeal to the Appellate Division that court affirmed, holding that despite the Commissioner’s failure to comply with the time, notice and hearing requirements of the Act, habeas corpus would not issue, citing People ex rel. Logatto v Hanes (93 AD2d 676). It did, however, direct the Commissioner to apply for a first retention order pursuant to CPL 330.20 (subd 8) within 10 days after service of a copy of its order with notice of entry. Thorpe’s appeal from that order is before us by our leave (61 NY2d 605).

The application directed by the Appellate Division to be made was made on November 29, 1983. When it came on for hearing, defendant Thorpe appeared by attorney but refused to appear personally. The hearing was then adjourned with defendant’s consent until decision of this appeal and an order was entered reciting that “it is undisputed by the parties that Mr. Thorpe is not presently competent to proceed on the application for a retention hearing” and directing that Thorpe remain at the Rochester Psychiatric Center in the custody of the Commissioner until the 1983 application for a first retention order is determined and until further order of the court.

The ground on which the November, 1983 application was made does not appear from the record. The 1981 and February, 1983 applications for the first and second retention orders had recited that Thorpe did not currently suffer from a dangerous mental disorder within the meaning of CPL 330.20 (subd 1, par [c]) but was suffering from a mental illness requiring in-patient treatment. The papers accompanying the two earlier applications, however, contained psychiatric reports reciting that Thorpe was responsible for the death of his first wife by beating her with a hammer and for assaulting his second wife by striking her with a rifle butt, and that he was very suspicious of and hostile toward his second wife and had threatened to “get rid of her.” The conclusion of the psychiatrists was that Thorpe was “mentally ill and could be dangerous” and that he “is a danger to his second wife.” Moreover, the notice of each application served on the defendant advised him that, “The court must conduct a hearing to determine whether the defendant has a dangerous mental disorder if a timely demand is made”.

II

In Matter of Torsney (47 NY2d 667, 672), we recognized that “automatic commitment of persons acquitted of crimes by reason of mental disease or defect is constitutionally permissible only for a reasonable period of time — that is, sufficient time to permit an examination and report as to the detainee’s sanity.” That concept was carried forward into the 1980 Act, which mandated that confinement for purposes of examination not exceed 30 days, plus an additional 30 days if authorized by the court, and required that each psychiatric examiner “promptly prepare a report” and that the court hold a hearing within 10 days after receipt of the report (CPL 330.20, subds 4, 5).

Legislative concern for protection of the constitutional rights of a defendant confined pursuant to the Act is evident also in the requirement, earlier alluded to, of section 13 of the Act, that as to a defendant confined under the prior statute whose continued confinement the Commissioner believed warranted “the commissioner shall apply for a retention order” within one year after September 1, 1980, and the provisions of CPL 330.20 (subds 8, 9) that “the commissioner must, at least thirty days prior to the expiration of the period prescribed in the [initial, first, second or subsequent] order, apply” for either a further retention order or a release order. Although there is no specific requirement, except as to the initial order, as to the time within which the hearing must be held, the provision for application 30 days prior to expiration of a retention order, the express provision of the Act that a first retention order not exceed one year (CPL 330.20, subd 1, par [g]) and that second and subsequent orders not exceed two years (id., pars [h], [i]), and the use of the imperative “must” in subdivisions 8 and 9 make clear the Legislature’s concern that there be periodic court review of the confinement of any defendant detained pursuant to the statute. That concern is evidenced as well by CPL 330.20 (subd 17), which provides that “[s]ubject to the limitations and provisions of this section, a defendant committed to the custody of the commissioner * * * shall have the rights granted to patients under the mental hygiene law.” As the Law Revision Commission was at pains to point out, that provision accords to a 330.20 detainee “in particular, the right to apply for a writ of habeas corpus as provided in Mental Hygiene Law §33.15” (1981 Report of NY Law Rev Comm, NY Legis Doc, 1981, No. 65, p 81, n 31, reprinted at 1981 McKinney’s Session Laws of NY, p 2265, n 31).

The Commissioner argues, however, and the Appellate Divisions of the Third and Fourth Departments have held in this case and in People ex rel. Logatto v Hanes (93 AD2d 676, supra), that habeas corpus is an inappropriate remedy because the Legislature was equally concerned for the safety of the public and expressly required an application by the Commissioner to the court on notice to the District Attorney and an order of court before a defendant detained under CPL 330.20 can be released. He argues further that by failing to bring the matter on for hearing after making his September 16, 1981 request, defendant has waived his right to a hearing. Neither argument withstands analysis.

There is no question that the Legislature in enacting the Insanity Defense Reform Act of 1980 sought to “ensure the protection of the public from future dangerous acts of defendants found not responsible while safeguarding the rights of such defendants” (1981 Report of NY Law Rev Comm, loc cit.; see, also, id., p 45; reprinted at 1981 McKinney’s Session Laws of NY, p 2251; and see the Governor’s Message on approving the Act, 1980 McKinney’s Session Laws of NY, pp 1879, 1880). It does not follow, however, that a defendant detained pursuant to CPL 330.20 is, as was held in Hanes (93 AD2d, at p 678), relegated to an article 78 proceeding in the nature of mandamus to compel the filing by the Commissioner of an application for an order of retention or the holding of a hearing on such an application. We held in Hoffv State of New York (279 NY 490, 492-493), not only that habeas corpus is the process for the protection of, and is “the only reliable protection of* * * [t]he right of persons, deprived of liberty, to challenge in the courts the legality of their detention”, but also that, “The Legislature could not deprive any person within the State of the privilege of a writ of habeas corpus. (N. Y. Const. art 1, § 4.)”, and that, “An officer of the State who detains a man under command of the State may not by indirection accomplish what the Constitution forbids to the State.”

Nor does the Act permit a holding that by failing to cause the August, 1981 application to be set down for hearing the defendant waived his right to a hearing. It is the Commissioner who must make application for a retention order and the Commissioner or the District Attorney who has the burden of establishing by a fair preponderance of the evidence that the defendant is not entitled to release (CPL 330.20, subds 8, 9; People v Escobar, 61 NY2d 431). The defendant is required to do no more than demand a hearing within 10 days after service upon him and his counsel of notice that the application has been made. While a defendant who fails to make such a demand after proper service of notice as the subdivisions require may be held to have waived a hearing, a defendant who has in response to the Commissioner’s application demanded a hearing cannot be held to have waived the hearing demanded simply because he takes no additional step to schedule the hearing. It is the Commissioner who must, in order to detain a defendant beyond the expiration of a prior retention order, obtain an order to that effect and who must, therefore, unless the court on its own motion calendars the hearing, move the application expeditiously for trial.

Compliance with the statutory time schedule, including the prompt setting of a hearing after demand, is, thus, a condition of retention of a defendant held pursuant to the Act. It is, therefore, error to dismiss a habeas corpus application and require the petitioner to initiate yet another (mandamus) proceeding, when it is clear that the time schedule has not been met. That does not, however, mean that in every such case the petitioner will be entitled to immediate release. Both this court and the Supreme Court of the United States have recognized that persons found not guilty by reason of mental disease or defect are “an exceptional class of individuals who may properly be treated somewhat differently” from persons subject to civil commitment (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334, 338; accord People v Escobar, 61 NY2d 431, supra; Jones v United States, 463 US 354). To order immediate release would leave the State no alternative but a civil commitment proceeding under the Mental Hygiene Law, notwithstanding that a defendant had demonstrated his dangerousness by the act of violence by reason of which he stands committed. In a civil proceeding the State would have to establish the need for further retention by the higher burden of proof (clear and convincing evidence) applicable to such commitments (Addington v Texas, 441 US 418; see People v Escobar, 61 NY2d 431, supra) rather than the preponderance standard applicable when the issue is whether a 330.20 detainee has a dangerous mental disorder (People v Escobar, supra; Jones v United States, supra). We conclude, therefore, that the proper disposition of a writ application, except in cases in which the papers before the court contain no indication of dangerous mental disorder, is a conditional order releasing the defendant unless, within a fixed and short period of time after the order a hearing on the retention application is begun and is expeditiously concluded (People ex rel. Chakwin v Warden, N. Y. City Correctional Facility, 63 NY2d 120; People ex rel. Brown v Johnston, 9 NY2d 482, 485).

Ill

The disposition of Thorpe’s habeas petition should, therefore, have been such an order of release, conditioned upon the holding of the first retention hearing applied for in August, 1981. Although in both the August, 1981 and February, 1983 applications the ground advanced was that he “does not currently suffer from a dangerous mental disorder * * * but * * * is mentally ill”, that statement was contained in one of several alternate paragraphs in a mimeographed form of petition and was indicated simply by the insertion of an X in a box next to the paragraph in which those words appeared. Despite the checking of that box, the notice accompanying each application informed defendant that, “The court must conduct a hearing to determine whether the defendant has a dangerous mental disorder if a timely demand is made” and the accompanying psychiatric reports included the statements relating to defendant’s dangerousness detailed above. In light of those statements we reverse the order of the Appellate Division and remit the matter to the Monroe County Court with directions to order Thorpe’s release, unless a hearing has been begun on the Commissioner’s August, 1981 application for a first retention order within 10 days after service upon the Commissioner with notice of entry of the order entered by the County Court on this court’s remittitur and is continued on successive court days without substantial interruption until concluded.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur.

Order reversed, without costs, and matter remitted to Monroe County Court for further proceedings in accordance with the opinion herein.

      . Although Thorpe asked for such a hearing in October, 1979, his attorney conceded on argument before the County Court that he was being held pursuant to a valid order, which expired under the 1980 Act on September 1, 1981.

      . It is, however, only as to dangerousness that the Commissioner would be entitled to the preponderance standard. To apply that standard in determining whether, in the course of the required hearing, the Commissioner has established that defendant is “mentally ill” would be impermissible under Addington v Texas (441 US 418).

      . We have not overlooked the direction of CPL 330.20 (subd 12) that there be an “order of conditions issued in conjunction with a release order [which] shall incorporate a written service plan prepared by a psychiatrist familiar with the defendant’s case history and approved by the court, and shall contain any conditions that the court determines to be reasonably necessary or appropriate.” Such provisions will be contained in the order of the 330.20 court made after, or preliminarily to, the holding of the required hearing, but are not a limitation on the conditional release order to be issued by the habeas court.