author: Ciparick, J.

text:
    [912 NE2d 1044, 884 NYS2d 665]
    The People of the State of New York, Respondent, v Wayne Davis, Appellant.
    Argued April 29, 2009;
    decided June 11, 2009

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Amy Donner and Steven Banks of counsel), for appellant.
    I. Criminal Procedure Law § 350.20 violates New York State Constitution, article VI, § 15 (a)’s requirement that the judges of the citywide court of criminal jurisdiction preside over criminal trials, by delegating judges’ exclusive jurisdiction over criminal matters to officers who are not judges, and violates the Due Process Clauses of the Federal and State Constitutions because the final decision on the defendant’s guilt or innocence is made by a judicial hearing officer rather than a judge. (People v Scalza, 76 NY2d 604; United States v Raddatz, 447 US 667; LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583; Mathews v Eldridge, 424 US 319; People v Flynn, 79 NY2d 879; People v Burwell, 53 NY2d 849; People v Holt, 182 Misc 2d 919.) II. Appellant did not validly waive his right to adjudication before a Criminal Court judge, where the court—a judicial hearing officer—never ascertained whether appellant understood he was consenting to adjudication before a judicial hearing officer by allegedly signing a written waiver form. (People v Scalza, 76 NY2d 604; Taylor v Illinois, 484 US 400; People v Ahmed, 66 NY2d 307; People v Parisi, 276 NY 97; Johnson v Zerbst, 304 US 458; People v De Jesus, 42 NY2d 519; People v Moreno, 70 NY2d 403; People v Brown, 24 NY2d 168; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288.) III. An accusatory instrument alleging a violation of a Parks and Recreation Department Rules provision containing exclusionary language was jurisdictionally defective where it failed to allege any factual allegations to establish that the exclusion did not apply to appellant. (People v Case, 42 NY2d 98; People v Santana, 7 NY3d 234; People v Dumas, 68 NY2d 729; People v Kohut, 30 NY2d 183; People v Alejandro, 70 NY2d 133; People v Hall, 48 NY2d 927; People v Casey, 95 NY2d 354; People v Zambounis, 251 NY 94; People v Rodriguez, 113 AD2d 337, 68 NY2d 674; People v Devinny, 227 NY 397.)

      Charles J. Hynes, District Attorney, Brooklyn (Lori Glachman and Leonard Joblove of counsel), for respondent.
    I. Defendant’s claim that CPL 350.20 is unconstitutional is without merit. (Weems v United States, 217 US 349; People v Tichenor, 89 NY2d 769; Glass v Thompson, 51 AD2d 69; Matter of Met Council v Crosson, 84 NY2d 328; Motor Veh. Mfrs. Assn, of U.S. v State of New York, 75 NY2d 175; People v Scalza, 76 NY2d 604; Carson v Thompson, 77 Misc 2d 872, 51 AD2d 692; Matter of Rosenthal v Hartnett, 36 NY2d 269; Matter of Dolce v Nassau County Traffic & Parking Violations Agency, 7 NY3d 492; Commodity Futures Trading Comm’n v Schor, 478 US 833.) II. Defendant failed to preserve for appellate review his claim that the procedure employed in obtaining his agreement to be tried by a judicial hearing officer was invalid. In any event, the claim is meritless. (People v Magnano, 77 NY2d 941; People v Lumpkins, 11 AD3d 563; People v Holt, 182 Misc 2d 919; Matter of Theroux v Reilly, 1 NY3d 232; People v Jackson, 87 NY2d 782; People v Scalza, 76 NY2d 604; New York v Hill, 528 US 110; United States v Olano, 507 US 725; People v Colon, 90 NY2d 824; People v Ferguson, 67 NY2d 383.) III. The information was facially sufficient. (People v Konieczny, 2 NY3d 569; People v Alejandro, 70 NY2d 133; People v Dumas, 68 NY2d 729; People v Devinny, 227 NY 397; Harris v White, 81 NY 532; Fleming v People, 27 NY 329; People v Santana, 7 NY3d 234; People v Sylla, 7 Misc 3d 8; People v Campbell, 6 Misc 3d 130[A], 2005 NY Slip Op 50064[U]; People v Bradford, 227 NY 45.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal arising out of defendant’s conviction for failure to comply with a posted sign indicating a New York City park’s closing time, we conclude that Criminal Procedure Law § 350.20, which permits class B misdemeanors to be tried and determined by judicial hearing officers (JHOs) “upon agreement of the parties,” is constitutional and that the parties’ agreement to engage in JHO adjudication here—as evidenced by a signed consent form and defense counsel’s participation in the JHO proceeding—was valid. In addition, we apply the standard of common sense and reasonable pleading and hold that the People’s information was sufficient.

I.

An information charged defendant with violating New York City Parks and Recreation Department Rules (56 RCNY) § 1-03 (c) (2), which prohibits persons from being in city parks after their posted closing times (see 56 RCNY 1-03 [c] [2]). Although the rule contains qualifying language stating that a person may disregard a park sign “upon order by a Police Officer or designated Department employee” (id.), the information—which was prepared by a police officer—did not state whether that portion of the rule applied to defendant. Rather, it indicated that the officer had observed defendant in Brooklyn’s Betsy Head Park at 2:06 a.m., on December 15, 2005, despite the fact that a park sign stated a closing time of 9:00 p.m. Violation of rule 1-03 (c) (2) is punishable as a class B misdemeanor (see 56 RCNY 1-07 [a]; Penal Law § 70.15 [2]), the maximum penalty for which is 90 days’ imprisonment and a $1,000 fine (see 56 RCNY 1-07 [a]).

On February 16, 2006, defendant—represented by counsel— was arraigned and pleaded not guilty. The court informed defendant that he would need to return for trial and that he would receive certain “paper work.” Contained in defendant’s Criminal Court file is a form entitled “CONSENT TO ADJUDICATION BEFORE A JUDICIAL HEARING OFFICER (JHO).” Although the form explained that defendant’s case was being referred to a JHO for “trial and/or final disposition and sentence,” it explicitly stated that defendant had “the right to adjudicate this case before a Criminal Court judge.” Further, the form listed the scope of the JHO’s authority as derived from CPL 350.20. Thus, it stated that

“[t]he Judicial Hearing Officer who adjudicates this

case will:

“a) determine all questions of law; and
“b) act as the exclusive trier of all issues of fact; and
“c) render a verdict; and
“d) impose a sentence if required.”

Accordingly, the form indicated that the JHO presiding over defendant’s class B misdemeanor trial “shall have the same powers as a Criminal Court judge and any action taken by the Judicial Hearing Officer shall be deemed the action of the Criminal Court.” The form also stated that defendant would have the right to seek an appeal from the JHO’s decision in his case in the same manner as he would had it been tried by a Criminal Court judge. Finally, immediately above its signature line, the form clarified that “[b]y signing this form[,] you hereby consent to having your case adjudicated before a Judicial Hearing Officer.”

Defendant apparently signed the JHO consent form. With the assistance of counsel, he proceeded to trial before a JHO and was convicted of violating the relevant Parks Department rule based on the testimony of the observing officer. During trial, defendant did not attempt to prove that he had been granted permission by a police officer or Parks Department employee to remain in Betsy Head Park past its posted closing time. On April 17, 2006, he was sentenced to a $75 fine or 10 days in jail. Approximately nine months later, he was resentenced to time served.

The Appellate Term affirmed (19 Misc 3d 145[A], 2008 NY Slip Op 51127[U]). The court held that the People were not required to plead that the qualifying language in 56 RCNY 1-03 (c) did not apply to defendant. Further, the court concluded that defendant had given a valid consent to JHO adjudication that was supported by his counsel’s participation—without objection—in defendant’s trial before a JHO. A Judge of this Court granted defendant leave to appeal (11 NY3d 787 [2008]) and we now affirm.

II.

We have previously examined the legislative history of the 1983 enactment (see L 1983, ch 840, § 11) codifying CPL 350.20 (see People v Scalza, 76 NY2d 604, 608 [1990]). The goal of this legislation was to utilize the services of highly-qualified retired judges, or JHOs, to alleviate the backlog and delay that had begun to “seriously cripple[ ]” our State’s court system and had “undermine[d] public confidence in the fairness of justice in our state” (see Report of Committee to Utilize the Services of Retired Judges, Bill Jacket, L 1983, ch 840, at 60 [hereinafter Retired Judges Report]). One of the ways in which the Legislature sought to alleviate these problems was by granting judges the discretionary authority to assign class B and unclassified misdemeanors to JHOs for adjudication “upon agreement of the parties” (see CPL 350.20 [1]). In such capacity, JHOs would act as a court (see CPL 350.20 [l]-[3]). Thus, with consent of the litigants, JHOs would be empowered to “(a) determine all questions of law; (b) act as the exclusive trier of all issues of fact; and (c) render a verdict” (see CPL 350.20 [1] [a]-[c]). Consensual JHO adjudication was intended to contribute to the goal of reducing pernicious calendar congestion, thereby fostering the more efficient administration of criminal justice (see Retired Judges Report, Bill Jacket, L 1983, ch 840, at 74). The question we must now decide is whether CPL 350.20’s pursuit of this worthy goal comports with the State and Federal Constitutions. For the reasons set forth below, we hold that it does.

III.

Defendant mounts two facial attacks against the constitutionality of CPL 350.20. He contends that it violates New York Constitution, article VI, § 15 (a) which provides for the establishment of the New York City Criminal Court and sets certain qualifications for that court’s judges. Defendant also argues that he has both a federal and state due process right to adjudicate his class B misdemeanor case before a Criminal Court judge and that CPL 350.20 improperly abridges that right.

To succeed in these arguments, defendant must shoulder a “substantial burden” (see People v Scalza, 76 NY2d 604, 607 [1990]). Duly enacted statutes enjoy a “presumption of constitutionality” (see id,.; Dalton v Pataki, 5 NY3d 243, 255 [2005]). Thus, a party who asserts that a statute is facially unconstitutional must demonstrate “beyond a reasonable doubt” that the statute suffers from “wholesale constitutional impairment” (see Matter of E.S. v P.D., 8 NY3d 150, 158 [2007], quoting Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003] [internal quotation marks omitted]; accord Scalza, 76 NY2d at 607 [“The substantial burden of proving unconstitutionality beyond a reasonable doubt rests with a statute’s antagonist”]). Each prong of defendant’s dual facial challenge fails to meet this exacting standard.

Defendant’s article VI, § 15 (a) argument is premised almost entirely on our decision in Scalza. In that case, we dealt with CPL 255.20 (4), which permits a court to refer any pretrial motion in a criminal case to a JHO for the preparation of a report setting forth the JHO’s proposed findings of fact and conclusions of law (see Scalza, 76 NY2d at 606). Such referral may be made without consent of the parties and the court retains power to accept, reject, or modify the JHO’s findings or even to review the motion de novo (see id. at 609). The defendant in Scalza argued that the nonbinding referrals authorized by CPL 255.20 (4) were unconstitutional under article VI, §§ 10 and 11 of the New York Constitution (see id.). We rejected that argument based on the lack of any “express or implied prohibitory language” in those constitutional provisions that would prevent the Legislature from authorizing nonconsensual JHO referrals to report (see id.). As we explained, sections 10 and 11 “provide essentially for the organization and jurisdiction of County Courts” (id.).

The same is true of article VI, § 15 (a). It requires the Legislature to establish “a single court of city-wide criminal jurisdiction in and for the city of New York” and mandates that the judges comprising that court be New York City residents, who are appointed by the City’s mayor to serve 10-year terms (NY Const, art VI, § 15 [a]). It does not speak to whether the Legislature may establish different tribunals with concurrent jurisdiction or whether it may authorize litigants to resort to those tribunals upon their agreement. Nonetheless, defendant maintains that article VI, § 15 (a) somehow precludes the Legislature from authorizing a JHO to determine a class B misdemeanor case when all parties consent to such adjudication. Defendant points to nothing in the express text of section 15 (a) to support this argument. Nor have we been able to locate any additional interpretative support for it (see 4th Ann Rep of NY Jud Conf, Comment, at 92-93 [1959] [indicating that main purpose of section 15 (a) was to achieve administrative efficiency]; see also Carter, New York State Constitution: Sources of Legislative Intent, at 64-65 & n 1 [2d ed]; NY CLS, Book 42A, NY Const art VI, Note [“The purpose of new Art(icle) 6 was to establish a unified court system”]).

Defendant is, therefore, forced to rely on certain statements drawn from Scalza. Thus, he points to our recognition of the trial court’s “nondelegable and exclusive authority to decide” a suppression motion referred to a JHO (see Scalza, 76 NY2d at 608), our acknowledgment that during the referral period that court “holds the tether on the case” (id. at 609), and our statement that “CPL 255.20 (4) . . . does not undermine or diminish the court’s exclusive power to decide” (id.). But as the People correctly assert, defendant’s constitutional argument divorces these statements from the context in which they were rendered.

At its outset, Scalza held that because the trial court retained the ultimate authority to determine a suppression motion after referral to a JHO “no unauthorized or unconstitutional diversion of the trial court’s exclusive jurisdiction and responsibility to decide is threatened” (76 NY2d at 607). Thus, the Scalza Court was not confronted, as we are here, with a situation in which the Legislature acted expressly to permit JHOs to exercise jurisdiction concurrent with that of a Criminal Court judge in cases where the litigants expressly agree to JHO adjudication of a class B misdemeanor.

As noted earlier, a key piece of section 350.20’s legislative history is the Retired Judges Report. In that report, the Committee, under the direction of then-Chief Judge Lawrence Cooke, recognized that “the hearing of minor matters in their entirety by retired judges would free lower-court judges to try more significant matters” (Bill Jacket, L 1983, ch 840, at 74). It thus recommended that JHOs “be authorized to hear and determine, with the consent of the parties, minor criminal matters not requiring a jury” (id.). When JHOs were utilized in “this restricted fashion,” the Committee did “not foresee any constitutional problems” (id.).

To support its constitutional analysis, the Committee cited the Appellate Division’s decision in Glass v Thompson (see Bill Jacket, L 1983, ch 840, at 87 n 31, citing 51 AD2d 69 [2d Dept 1976]). In Glass, the court considered an article VI, § 15 challenge to the legislation granting hearing officers—subsequently renamed Housing Court Judges—authority to hear and determine summary proceedings in the Housing Part of the New York City Civil Court (see 51 AD2d at 70). The court had “no problem [ ]” concluding that the legislation was constitutional (id. at 72). Analogizing hearing officers to “referees” who had been traditionally empowered to hear and determine certain classes of disputes, the court held that section 15 “creates the Civil Court and specifies the method by which its Judges are to be selected; it does not prohibit references” (see id. at 72-73). Glass further recognized that the Legislature had authority to provide that certain matters be referred to expert nonjudicial officers even without the litigants’ consent so long as the parties’ guaranteed constitutional rights, such as the right to trial by jury, were not violated (see id. at 76).

We, too, have cited Glass with approval (see Motor Veh. Mfrs. Assn, of U.S. v State of New York, 75 NY2d 175, 185 [1990]; Matter of Met Council v Crosson, 84 NY2d 328, 333 [1994]). Indeed, we did so in upholding the New Car Lemon Law, which gave consumers the option of bypassing a Supreme Court civil action by compelling manufacturers to arbitrate claims arising out of alleged car defects (Motor Veh., 75 NY2d at 185). Here, we do not deal with such a “compulsory reference[ ]” to a JHO (see Motor Veh., 75 NY2d at 185), but with one that is consented to by defendant and the People. Moreover, as in Glass and Motor Vehicle, defendant’s jury trial rights are not threatened since—absent consent to JHO referral—this class B misdemeanor proceeding would have been adjudicated in a bench trial (see CPL 340.40 [2]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 340.40, at 195 [“(T)here is no constitutional requirement—federal or state—of a jury trial for offenses punishable by 6 months or less”]). Thus, as the Legislature envisioned, the trial of defendant’s case represented the sort of referral upon the consent of the parties that has long been permitted in this state (see Glass, 51 AD2d at 75; see also Motor Veh., 75 NY2d at 185; CPLR 4317 [a] [“The parties may stipulate that any issue shall be determined by a referee”]).

It is clear that “[Legislation which affects the jurisdiction” of a trial court is “not necessarily void” (Motor Veh., 75 NY2d at 184). Indeed, in Matter of Dolce v Nassau County Traffic & Parking Violations Agency (7 NY3d 492 [2006]), we held that the Legislature had authority to confer jurisdiction over certain traffic and parking prosecutions to an administrative arm of the Nassau County District Court staffed by JHOs (see id. at 495-496 & n 2). Such jurisdiction was proper even though JHO adjudication was permitted “without consent of the parties” (see id. at 495, citing CPL 350.20 [5]). Thus, here, where consent is a prerequisite to JHO adjudication, we have little difficulty concluding that nothing in article VI, § 15 (a) prohibited the Legislature from enacting CPL 350.20.

Defendant also asserts a violation of the Federal and State Due Process Clauses. To evaluate these claims, we must balance “the interests of the parties to the dispute, the adequacy of the contested procedures to protect those interests, and the government’s stake in the outcome” (see Scalza, 76 NY2d at 610 [internal quotation marks omitted]; People v Thompson, 90 NY2d 615, 621 [1997]; see also United States v Raddatz, 447 US 667, 677 [1980], citing Mathews v Eldridge, 424 US 319, 335 [1976]). We agree with the People that an application of these factors demonstrates that CPL 350.20 easily passes constitutional muster.

Initially, defendant incorrectly asserts that his due process interest is that of having his class B misdemeanor case determined by a “judge.” But what defendant is actually entitled to is a “fair trial in a fair tribunal” (see Friedman v State of New York, 24 NY2d 528, 542 [1969], quoting In re Murchison, 349 US 133, 136 [1955]; People v Moore, 42 NY2d 421, 431 [1977]). Defendant was charged with a “petty offense” or one which authorizes a period of incarceration of six months or less (see Duncan v Louisiana, 391 US 145, 160 [1968]; Baldwin v New York, 399 US 66, 73 [1970]; Blanton v North Las Vegas, 489 US 538, 543 [1989]). Indeed, in the absence of CPL 350.20 his case would have proceeded to a bench trial before a Criminal Court judge (see CPL 340.40 [2]; People v Urbaez, 10 NY3d 773, 775 [2008]). Defendant points to nothing in the nature of a consensual JHO adjudication that gives rise to any substantial concern that the presiding JHO would lack the neutrality that is a fundamental command of due process (see Marshall v Jerrico, Inc., 446 US 238, 242 [1980]).

The breadth of defendant’s interest here is further circumscribed by the critical fact that the Legislature has carefully provided that JHOs may only be assigned to adjudicate class B misdemeanors “upon agreement of the parties” (CPL 350.20 [l]). But defendant says that consensual JHO references in class B misdemeanor cases violate due process unless a Criminal Court judge is required to pass upon the result reached by a JHO before rendering a final determination. Although this Court and the U.S. Supreme Court have concluded that the nonconsensual referral of a pretrial suppression motion comports with due process because a judge retains ultimate authority to decide the motion after the referral is completed (see Soalza, 76 NY2d at 609-610; Raddatz, 447 US at 680), these holdings do not control where, as here, a referral to a JHO to decide a petty criminal case is made upon consent of the parties.

In this regard, the U.S. Supreme Court’s holdings in Gomez v United States (490 US 858 [1989]) and Peretz v United States (501 US 923 [1991]) are instructive. Both cases concerned the question whether the “additional duties” clause of the Federal Magistrates Act (18 USC § 636 [b] [3]) permitted a district judge to assign a federal magistrate to preside over jury selection in a felony trial. In Gomez, the court answered that question in the negative (see 490 US at 875-876). But in Peretz, it reached the opposite conclusion because, unlike in Gomez, defense counsel had consented to the magistrate’s participation in voir dire (see 501 US at 933). As the Court explained, “the defendant’s consent significantly changes the constitutional analysis” (see id. at 932). We agree and perceive no due process problem with CPL 350.20 since it only allows for the adjudication of class B misdemeanors—a type of petty crime—upon the express consent of the parties (of. Peretz, 501 US at 936 [“There is no constitutional infirmity in the delegation of felony trial jury selection to a magistrate when the litigants consent”]; see also id. at 933 [noting that “with the parties’ consent, a district judge may delegate to a magistrate supervision of entire civil and misdemeanor trials”]).

We likewise conclude that CPL 350.20’s consensual JHO adjudication procedure adequately protects defendant’s interest in a fair trial. Before their appointment, prospective JHOs are carefully evaluated by the Chief Administrator of the Courts to ensure that they possess the “physical and mental capacity, competence, work ethic, experience and judicial temperament necessary to perform the duties of a judicial hearing officer, and [are] well qualified to serve on the panels in the courts to which [they] will be designated” (see 22 NYCRR 122.2 [a]; see also Judiciary Law § 850). If deemed fit for service, JHOs are: appointed for potentially renewable one-year terms (see 22 NYCRR 122.3, 122.3-b), subject to performance evaluations (see 22 NYCRR 122.3-a), assigned as necessary to “panels” of particular courts based upon the determination of the Chief Administrator (see 22 NYCRR 122.5), assigned to preside over particular matters or court parts based upon a variety of factors including their “previous experience and expertise” (see 22 NYCRR 122.6 [a]-[b]), and subject to removal “for unsatisfactory performance or for any conduct incompatible with service as a judicial hearing officer” (see 22 NYCRR 122.5 [e]). These and other safeguards (see generally 22 NYCRR part 122), when combined with the consensual nature of JHO adjudication under CPL 350.20 and the availability of appellate review (see CPL 350.20 [3]), persuade us that the statute under review adequately protects defendant’s due process right to a fair tribunal in which to adjudicate this petty criminal case.

As to the relevant governmental interest, CPL 350.20’s legislative history makes plain the detrimental effects that congestion and backlog in our State’s courts can have upon the administration of justice (see Retired Judges Report, Bill Jacket, L 1983, ch 840, at 60, 74-75). Indeed, such delay represents a “recognized evil to the fair administration of the criminal justice system” (see Scalza, 76 NY2d at 604; cf. Urbaez, 10 NY3d at 775 [“Especially in New York City, with its high volume of misdemeanor cases, (CPL 340.40 [2]) furthers the important public interest of effective judicial administration”]). Thus, the governmental interest in ensuring the maintenance of a carefully-vetted, highly-qualified staff of JHOs standing ready to fairly and efficiently adjudicate petty criminal cases is substantial and further supports our conclusion that defendant’s facial due process challenge to CPL 350.20 cannot succeed.

It is important to emphasize that the nature of this case requires us to leave certain questions for another day. Among the issues not now before us is whether the Legislature could empower a non-judge, without a defendant’s consent, to adjudicate even a petty criminal case in which—as in this one— imprisonment is a possible outcome (cf. Matter of Rosenthal v Hartnett, 36 NY2d 269, 271 [1975] [approving administrative adjudication of traffic infractions “where such determination may result in the imposition of a fine but not imprisonment”]). Nor do we decide whether trials of felony or class A misdemeanors may be assigned to a non-judge even though a defendant has consented to such adjudication and waived the right to a jury trial. Although we hold that CPL 350.20 is constitutionally valid, our holding is necessarily limited by the particular statutory and factual context that we consider here. There are unquestionably constitutional limits on the extent to which the Legislature can assign the task of adjudicating criminal cases to individuals who are not judges or justices. We have never decided, and do not now decide, exactly what those limits are; we only hold that they have not been exceeded here.

IV

Next, defendant contends that the consent to JHO adjudication was ineffective because the trial court did not engage him in an oral colloquy regarding whether he understood the effect of the signed JHO consent form. As an initial matter, unlike other statutes governing waivers of rights in criminal proceedings, CPL 350.20 requires the “parties[’] agreement,” not defendant’s personal consent (compare e.g. CPL 270.35 [1] [“defendant” must consent in writing and in open court to replacement of juror by alternate juror during deliberations]; CPL 320.10 [l]-[2] [specifying procedure by which “defendant” may waive right to jury trial]). More significantly, though, defendant was represented by counsel. And “[fit is well established that a defendant, ‘having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as ‘whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” (see People v Colon, 90 NY2d 824, 825-826 [1997]).

We hold that the decision whether to agree to JHO adjudication of a petty criminal case represents the sort of “tactical decision” best left to the determination of counsel (cf Gonzalez v United States, 553 US 242, —, 128 S Ct 1765, 1770 [2008]). Such decision turns upon a myriad of case-specific factors that a lawyer is well-suited to assess, including the practices of members of the JHO panel in the relevant jurisdiction, the likelihood that JHO adjudication will be more expeditious and therefore beneficial to the defendant, and the potential for having assigned to the defendant’s trial a JHO before whom counsel has previously had a favorable experience (cf. People v Ferguson, 67 NY2d 383, 390 [1986]; Gonzalez, 553 US at —, 128 S Ct at 1770). Here, defense counsel participated fully in a trial held before a JHO without objection and the Criminal Court file contains a JHO consent form signed by defendant. We think that the consent to JHO adjudication was sufficient for present purposes.

V

Lastly, defendant argues that the accusatory instrument was jurisdictionally defective. The facial sufficiency of the People’s information (see CPL 100.40 [1]; 100.15 [3]) turns upon whether the statement “except such sign may be disregarded upon order by a Police Officer or designated Department employee” as found in the Parks Department rule that defendant was convicted of violating is, as defendant argues, a true “exception” that must be pleaded by the People or whether it operates as a “proviso” that defendant was required to raise as a bar to prosecution (see 56 RCNY 1-03 [c] [2]; People v Santana, 7 NY3d 234, 236 [2006]). Although the murky contours of “exceptions” and “provisos” have long been the subject of debate (see People v Bradford, 227 NY 45, 48 [1919]; People v Devinny, 227 NY 397, 401 [1919]; Santana, 7 NY3d at 236-237), we continue to utilize those ancient labels.

The main goal of the interpretative rules governing exceptions and provisos is to discover the intention of the enacting body (see Santana, 7 NY3d at 237; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 211, Comment, at 369 [“(T)he distinction between a proviso and an exception will be wholly disregarded, if necessary to give effect to the manifest intention of the Legislature”]). Thus, the fact that rule 1-03’s qualifying language is introduced by “except” is not determinative (see McKinney’s Cons Laws of NY, Book 1, Statutes § 211, Comment, at 370). In Santana, we applied the general rule that qualifying language found outside the text of a relevant Penal Law provision is in the nature of a “proviso” (see 7 NY3d at 237), but our ultimate conclusion was premised on the belief that the Legislature could not reasonably have intended the People to negate the existence of each of the myriad labor disputes delineated in Judiciary Law § 753-a in a prosecution for criminal contempt based on the defendant’s violation of an order of protection prohibiting him from residing in an apartment (see id.).

Here, we conclude that, as a matter of common sense and reasonable pleading (see Devinny, 221 NY at 401; accord Santana, 1 NY3d at 237), the City’s Parks Department did not intend that the People plead and prove that no police officer or Parks Department employee had authorized defendant to ignore a posted closing time. Such information is uniquely within a defendant’s knowledge, and to require the People to plead and negate the existence of the relevant permission would require them to go to “intolerable lengths,” including innumerable interviews of officers and employees in the area during the date in question (see id.). These efforts would serve “[n]o useful purpose of narrowing issues or giving notice,” but would merely give rise to “technicalitie[s that] could be used belatedly to stifle an otherwise viable prosecution” (cf. People v Kohut, 30 NY2d 183, 191 [1972]). As such, we hold that the Parks Department intended the police officer/department employee qualifying language to operate as a “proviso” that must be pleaded and proved by the defendant.

We conclude that defendant’s constitutional arguments must fail, the consent to JHO adjudication was valid, and that defendant’s claim as to the jurisdictional deficiency of the accusatory instrument is meritless, as are his remaining contentions. Accordingly, the order of the Appellate Term should be affirmed.

Jones, J. (dissenting). I join in Judge Ciparick’s opinion except as to section I\f from which I dissent.

Criminal Procedure Law § 350.20 permits the trial of an information by a judicial hearing officer. This statute provides that “the court may, upon agreement of the parties, assign a judicial hearing officer to conduct the trial” (id.). Inasmuch as there is no basis for a finding of a knowing waiver by defendant of the right to a trial by a judge, I would reverse this conviction.

The Legislature enacted this provision to ameliorate the pernicious effects that the congestion and backlog of cases in our state’s courts can have on the administration of justice. The majority tells us that under this statute a defendant’s interest in a fair trial is protected because the defendant consents to trial by a judicial hearing officer. Where that consent is given, I agree. However, the short shrift given to the procedural safeguards in this case precludes a finding of consent.

To show that the defendant waived his right to be tried by a judge of the Criminal Court, the People and the majority rely on a form found in the court file which purports to be signed by the defendant. This form is neither dated, nor witnessed by the court, a court clerk or counsel. In addition, and more importantly, it is not mentioned on the record by the defendant, the attorney, the court clerk or the court. Even assuming defendant signed the form there is nothing in the record to show that he knew what he was signing.

The majority says there was no need here for any colloquy between the court and the defendant because the statute merely requires “agreement of the parties” for a waiver, not a personal waiver by defendant. However, we must ask who is the “party” in this case, if it is not the defendant. There is no written waiver purported to be signed by any of the three different lawyers who appeared on behalf of defendant prior to his trial and conviction. Neither is there any record of an oral waiver of defendant’s right to be tried by a judge by any of the lawyers who represented defendant. I agree that defendant could waive his right through counsel, and I would not require elaborate formalities to accomplish that. But the waiver must at least be mentioned on the record in defendant’s presence, to provide some assurance that defendant knew he was giving up the right to be tried by a judge.

The majority points out the various waivers and rights encountered in criminal proceedings from replacing a juror with an alternate juror (CPL 270.35 [1]) to waiver of a right to a jury trial (CPL 320.10). Some waivers must be done by defendant, in writing and in open court, and others may be done by counsel, on behalf of the defendant. However, the one common element is that they are memorialized on the record in open court. This is the way lawyers communicate when representing a client in the exercise of a fundamental right.

The majority asserts that the decision to waive a trial by a judge and proceed before a judicial hearing officer is a decision to be made by counsel. There is no authority to support that position; indeed, the Criminal Court form used to communicate the waiver is to be signed by a defendant alone. Further, the majority surmises that an experienced defense counsel makes a “tactical decision” to try a case before a judicial hearing officer. This reasoning overlooks the fact that in New York City Criminal Courts, attorneys from the 18-B Panel may be assigned on a per diem basis to a particular court part to handle all of the cases that are on the court calendar for the day. In fact, defendant was represented by no less than five different attorneys during the pendency of this matter.

As in all other waivers that occur in criminal proceedings, there is no need for a particular catechism. Nevertheless, there must be record evidence of a knowing, voluntary and intelligent waiver of the right to a trial by a judge. Here, the complete absence of such record evidence requires reversal.

Chief Judge Lippman and Judges Graffeo, Read and Pigott concur with Judge Ciparick; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Smith concurs.

Order affirmed.

      . Before the Appellate Term, defendant seemed to acknowledge in his brief that the signature on the form was his own by arguing that “although appellant signed a form purporting to consent to adjudication by a Judicial Hearing Officer” the trial court erred in failing to elicit his consent on the record. In the same brief, though, defendant complained that the trial court had not inquired whether the “signature was his signature” or whether he understood the meaning or significance of his consent to adjudication before a JHO. In his present appeal, defendant refers to the signature on the consent form as a “purported” one. Putting aside defendant’s ostensibly shifting positions on the authenticity of the signature on the JHO consent form, there is nothing in the record to indicate that the signature is not defendant’s and, as such, we will presume that it was.

      . Article VI, § 15 (c) specifies the range of the Criminal Court’s jurisdiction.

      . Additional criteria for service on the City’s Criminal Court are set forth in subsequent sections of article VI (see NY Const, art VI, §§ 20, 25).

      . In this respect, our Legislature has accorded defendants in petty criminal cases more statutory protection than that offered under federal law, which permits federal magistrates to try all petty criminal cases without the defendant’s consent (see 18 USC § 3401 [b] [“Any person charged with a misdemeanor, other than a petty offense may elect. . . to be tried before a district judge for the district in which the offense was committed” (emphasis added)]; 18 USC §§ 19, 3559 [a] [7]; see also United States v Rivera-Negron, 201 FRD 285, 288-289 [D PR 2001], citing United States v McCrickard, 957 F Supp 1149 [ED Cal 1996] [rejecting constitutional challenge to section 3401 (b)]).

      . Scalza, of course, dealt with a statutory provision potentially applicable in felony prosecutions (see CPL 255.20 [4]).


source: Caselaw Access Project

author: Jones, J. Graffeo, J. (concurring). Pigott, J. (dissenting).

license: Public Domain

text:
    [915 NE2d 593, 886 NYS2d 648]
    Jiovon Anonymous, an Infant, by His Father and Legal Guardian, Thomas Anonymous, et al., Respondents, v City of Rochester et al., Appellants.
    Argued April 28, 2009;
    decided June 9, 2009

      POINTS OF COUNSEL

      Thomas S. Richards, Corporation Counsel, Rochester (Jeffrey Eichner and Michele Romance Crain of counsel), for appellants.
    I. The City of Rochester has authority to adopt a curfew ordinance. II. The curfew ordinance is consistent with the Family Court Act and Penal Law. (Matter of Shannon B., 70 NY2d 458; Matter of Bernard G., 247 AD2d 91; Santosky v Kramer, 455 US 745; Matter of Terrence G., 109 AD2d 440; Matter of D'Angelo H., 184 AD2d 1039; Matter of Marrhonda G., 81 NY2d 942; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395; Consolidated Edison Co. of NY. v Town of Red Hook, 60 NY2d 99; Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500.) III. The curfew meets equal protection requirements. (Ramos v Town of Vernon, 353 F3d 171; Buzzetti v City of New York, 140 F3d 134; People ex rel. Wayburn v Schupf, 39 NY2d 682; Adarand Constructors, Inc. v Pena, 515 US 200;
      Plyler v Doe, 457 US 202; Gregory v Ashcroft, 501 US 452; Wengler v Druggists Mut. Ins. Co., 446 US 142; United States v Coleman, 166 F3d 428; Bellotti v Baird, 443 US 622; Hutchins v District of Columbia, 188 F3d 531.) IV Other curfew decisions support the City of Rochester curfew. (Ramos v Town of Vernon, 353 F3d 171; Qutb v Strauss, 11 F3d 488, cert denied sub nom. Qutb v Bartlett, 511 US 1127; Schleifer by Schleifer v City of Charlottesville, 159 F3d 843, 526 US 1018; Ginsberg v New York, 390 US 629; Craig v Boren, 429 US 190; Hutchins v District of Columbia, 188 F3d 531; Nunez by Nunez v City of San Diego, 114 F3d 935; Hodgkins v Peterson, 355 F3d 1048.) V. Facial challenges are disfavored. VI. The curfew ordinance does not violate the due process rights of the parent. (Qutb v Strauss, 11 F3d 488; Ramos v Town of Vernon, 353 F3d 171.) VII. The curfew does not violate the First Amendment of the Federal Constitution. (Nunez by Nunez v City of San Diego, 114 F3d 935; Hodgkins v Peterson, 355 F3d 1048; Dallas v Stanglin, 490 US 19; Board of Directors of Rotary Int’l v Rotary Club of Duarte, 481 US 537; Griswold v Connecticut, 381 US 479; People v Barton, 8 NY3d 70; Cornelius v NAACP Legal Defense & Ed. Fund, Inc., 473 US 788; Qutb v Strauss, 11 F3d 488; Hodgkins v Peterson, 355 F3d 1048; Hutchins v District of Columbia, 188 F3d 531.)

      Davidson Fink LLP, Rochester (Michael Adam Burger of counsel), for respondents.
    I. This appeal is not moot. (Matter of Michael W., 295 AD2d 134; Matter of Carlton F, 25 AD3d 610; Matter of Charles M., 143 AD2d 96; People v Salaam, 83 NY2d 51; Roe v Wade, 410 US 113; East Meadow Community Concerts Assn, v Board of Educ. of Union Free School Dist No. 3, 18 NY2d 129; Matter of Hearst Corp. v Clyne, 50 NY2d 707; People ex rel. Maxian v Brown, 77 NY2d 422; People ex rel. Guggenheim v Mucci, 32 NY2d 307; Ramos v Town of Vernon, 331 F3d 315.) II. The City of Rochester lacks the statutory authority to enact a curfew. (Bellanca v New York State Liq. Auth., 54 NY2d 228; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Matter of Ames v Smoot, 98 AD2d 216; Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372; Fenster v Leary, 20 NY2d 309.) III. The curfew unlawfully supersedes sections 305.2 and 724 of the Family Court Act. (Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395; Matter of Randy K., 77 NY2d 398; Matter of Detrece H., 78 NY2d 107; Matter of Victor M., 9 NY3d 84; Matter of Michael G., 99 Misc 2d 699; Matter of David W, 28 NY2d 589; Matter of James T, 189 AD2d 580; Matter of Joel I., 165 Misc 2d 160; Matter of Charles M., 135 Misc 2d 450, 143 AD2d 96; Matter of Carlton E, 25 AD3d 610.) IV Children are arrested under the curfew. (Matter of Victor M., 9 NY3d 84; People v Ryan, 12 NY3d 28; Jacques v Sears, Roebuck & Co., 30 NY2d 466; Matter of Doris A., 145 Misc 2d 222; Matter of D'Angelo H., 184 AD2d 1039; Matter of Marrhonda G., 81 NY2d 942; Matter of Marangeli M., 199 AD2d 189; United States v Smith, 549 F3d 355; People v Marsh, 20 NY2d 98; Matter of Terrence G., 109 AD2d 440.) V. The curfew illegally supersedes section 30.00 of the Penal Law. (Matter of Joe A., 171 Misc 2d 241; People v O’Neill, 79 AD2d 429; Martineta v Town of New Hartford Police Dept., 307 AD2d 735; Matter of Musso, 102 Misc 2d 934; Lee v Sandberg, 136 F3d 94; People v Scott, 79 NY2d 474; People v Lee, 58 NY2d 491; Craig v Boren, 429 US 190.) VI. The curfew unlawfully supersedes section 718 of the Family Court Act. (Rivers v Katz, 67 NY2d 485; Parham v J.R., 442 US 584; Matter of Sanjivini K., 47 NY2d 374; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Leon RR, 48 NY2d 117; Finlay v Finlay, 240 NY 429; Santosky v Kramer, 455 US 745; Stanley v Illinois, 405 US 645; Schall v Martin, 467 US 253; Matter of Michael B., 80 NY2d 299.) VII. The application of the curfew to 16 year olds is not severable. (CWM Chem. Servs., L.L.C. v Roth, 6 NY3d 410; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; People v Taylor, 9 NY3d 129.) VIII. The curfew exceeds the City of Rochester’s authority under General City Law § 20 (37). (People v Bright, 71 NY2d 376; People v Diaz, 4 NY2d 469; Chicago v Morales, 527 US 41; People v Boulware, 130 AD2d 370; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; People v Johnson, 6 NY2d 549; People v Merolla, 9 NY2d 62; People v Pagnotta, 25 NY2d 333; People v Smith, 44 NY2d 613; People v Uplinger, 58 NY2d 936.) IX. The curfew fails to comply with the requirements of Executive Law § 24. (Hirabayashi v United States, 320 US 81; Lambert v California, 355 US 225.) X. The curfew fails to comply with section 22 of the Municipal Home Rule Law. (Bareham v City of Rochester, 246 NY 140; Turnpike Woods v Town of Stony Point, 70 NY2d 735; Kamhi v Town of Yorktown, 74 NY2d 423.) XI. The curfew ordinance violates Jiovon’s right to freedom of movement. (Aptheker v Secretary of State, 378 US 500; Ramos v Town of Vernon, 353 F3d 171; Johnson v Cincinnati, 310 F3d 484; Waters v Barry, 711 F Supp 1125; King v New Rochelle Mun. Hous. Auth., 442 F2d 646; Chicago v Morales, 527 US 41; Williams v Town of Greenburgh, 535 F3d 71; People v Leonard, 62 NY2d 404; City of New York v Andrews, 186 Misc 2d 533; Town of

      Pompey v Parker, 53 AD2d 125.) XII. The curfew ordinance violates minors’ rights to freedom of speech and freedom of assembly. (People v Kearse, 58 Misc 2d 277; De Jonge v Oregon, 299 US 353; Hodgkins v Peterson, 355 F3d 1048; Nunez by Nunez v City of San Diego, 114 F3d 935; Johnson v Cincinnati, 310 F3d 484; Coates v Cincinnati, 402 US 611; Wright v Georgia, 373 US 284; Johnson v City of Opelousas, 658 F2d 1065; People v Ryan, 12 NY3d 28; Saia v New York, 334 US 558.) XIII. The curfew ordinance is unconstitutionally vague. (People v Bright, 71 NY2d 376; People v Diaz, 4 NY2d 469; Trio Distrib. Corp. v City of Albany, 2 NY2d 690; Chicago v Morales, 527 US 41; Kolender v Lawson, 461 US 352; Hodgkins v Peterson, 355 F3d 1048; Papachristou v Jacksonville, 405 US 156; People v Kearse, 56 Misc 2d 586, 58 Misc 2d 277; People v Dietze, 75 NY2d 47; Erznoznik v Jacksonville, 422 US 205.) XIV The curfew is unconstitutionally overbroad. (People v Bright, 71 NY2d 376; Shuttlesworth v Birmingham, 382 US 87; Chicago v Morales, 527 US 41; Johnson v City of Opelousas, 658 F2d 1065; Qutb v Strauss, 11 F3d 488; Speiser v Randall, 357 US 513; Hodgkins v Peterson, 355 F3d 1048; Cox v Louisiana, 379 US 536; Ramos v Town of Vernon, 353 F3d 171; People v Bunis, 9 NY2d 1). XV The curfew ordinance permits seizures of minors and suspected minors without probable cause in violation of the Fourth and Fourteenth Amendments of the US Constitution and article I, § 12 of the New York Constitution. (Matter of Doris A., 145 Misc 2d 222, 163 AD2d 63; Matter of Victor M., 9 NY3d 84; People v Adams, 32 NY2d 451; Matter of Robert M., 99 Misc 2d 462; People v Robinson, 97 NY2d 341; People v Scott D., 34 NY2d 483; People v De Bour, 40 NY2d 210; People v Boulware, 130 AD2d 370; People v Howard, 50 NY2d 583; People v Beltrand, 63 Misc 2d 1041.) XVI. The curfew violates the rights of parents to raise their children without undue government interference. (Troxel v Granville, 530 US 57; Santosky v Kramer, 455 US 745; Rivers v Katz, 67 NY2d 485; Waters v Barry, 711 F Supp 1125; People v Hitchcock, 98 NY2d 586; Stanley v Illinois, 405 US 645; Nunez by Nunez v City of San Diego, 114 F3d 935; Bellotti v Baird, 443 US 622; Johnson v City of Opelousas, 658 F2d 1065; Ramos v Town of Vernon, 353 F3d 171.) XVII. The curfew violates Jiovon’s right to due process. (Bellotti v Baird, 443 US 622; Matter of Robert J., 2 NY3d 339; People ex rel. Shaw v Lombard, 95 Misc 2d 664; Williamson v United States, 184 F2d 280; People v Catu, 4 NY3d 242; People v Santana, 7 NY3d 234; Freedman v Maryland, 380 US 51; People ex rel. Wayburn v Schupf 39 NY2d 682; Schall v Martin, 467 US 253.) XVIII. The ordinance violates Jiovon’s right to the equal protection of the law. (Matter of Abrams v Bronstein, 33 NY2d 488; Wilson v Crosson, 222 AD2d 1085; Attorney General of N. Y v Soto-Lopez, 476 US 898; Nunez by Nunez v City of San Diego, 114 F3d 935; Qutb v Strauss, 11 F3d 488; Hodgkins v Peterson, 355 F3d 1048; People ex rel. Wayburn v Schupf 39 NY2d 682; Ramos v Town of Vernon, 353 F3d 171; Kramer v Union Free School Dist. No. 15, 395 US 621.) XIX. The City of Rochester’s “facts” and figures fail to justify the curfew. (People v Molnar, 98 NY2d 328; Matter of E.S. v P.D., 8 NY3d 150; People v Silvestry, 11 NY3d 902; Waters v Barry, 711 F Supp 1125; Papachristou v Jacksonville, 405 US 156; Craig v Boren, 429 US 190; People v Boulware, 130 AD2d 370; Ramos v Town of Vernon, 353 F3d 171; Hutchins v District of Columbia, 942 F Supp 665, 188 F3d 531.) XX. Appellants’ cited cases do not support the City of Rochester’s curfew. (Hutchins v District of Columbia, 188 F3d 531; Qutb v Srauss, 11 F3d 488; Ramos v Town of Vernon, 353 F3d 171; City of New York v Andrews, 186 Misc 2d 533; Schleifer by Schleifer v City of Charlottesville, 159 F3d 843; Bray v City of New York, 346 F Supp 2d 480; People v Bezjak, 11 Misc 3d 424; Coates v Cincinnati, 402 US 611; Lewis v New Orleans, 415 US 130; Hodgkins v Peterson, 355 F3d 1048.)

      Adriana Piñón, New York City, and Arthur Eisenberg for New York Civil Liberties Union, amicus curiae.
    I. The City of Rochester curfew violates parents’ fundamental right to direct the upbringing of their children. (Wisconsin v Yoder, 406 US 205; Meyer v Nebraska, 262 US 390; Troxel v Granville, 530 US 57; Prince v Massachusetts, 321 US 158; Pierce v Society of Sisters, 268 US 510; Ginsberg v New York, 390 US 629; Hutchins v District of Columbia, 188 F3d 531; Parham v J.R., 442 US 584; Action for Children’s Tel. v Federal Communications Commn., 58 F3d 654; Matter of E.S. v P.D., 8 NY3d 150.) II. The City of Rochester ordinance also violates article I, § 6 of the New York State Constitution. (People v P.J. Video, 68 NY2d 296; People ex rel. Arcara v Cloud Books, 68 NY2d 553; Matter of Alfonso v Fernandez, 195 AD2d 46; Price v New York City Bd. of Educ., 16 Misc 3d 543; Matter of C.M. v C.H., 6 Misc 3d 361; Matter of E.S. v P.D., 8 NY3d 150; Matter of Roe v Doe, 29 NY2d 188; Michigan v Long, 463 US 1032; People v Alvarez, 70 NY2d 375; People v Scott, 79 NY2d 474.)

      John A. Mancini, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.
    I. The New York State Constitution and Municipal Home Rule Law permit municipalities to enact youth curfew laws. (New York State Club Assn. v City of New York, 69 NY2d 211; Matter of Michael G., 99 Misc 2d 699.) II. Public policy mandates that municipalities be afforded flexibility in protecting the community’s youth.
   OPINION OF THE COURT

Jones, J.

The issue before this Court is whether the juvenile nighttime curfew adopted by the Rochester City Council violates the Federal and New York State Constitutions. We hold that it does.

I

In 2006, the Rochester City Council (City Council) adopted chapter 45 of the Code of the City of Rochester (City Code) which established a nighttime curfew for juveniles. Under the curfew:

“It is unlawful for minors to be in or upon any public place within the City at any time between 11:00 p.m. of one day and 5:00 a.m. of the immediately following day, except that on Friday and Saturday the hours shall be between 12:00 midnight and 5:00 a.m. of the immediately following day” (Rochester City Code § 45-3).

A minor is defined as “[a] person under the age of 17 [but] [t]he term does not include persons under 17 who are married or have been legally emancipated” (Rochester City Code § 45-2). The curfew provides for certain exceptions which make the prohibition under the curfew inapplicable

“if the minor can prove that:

“A. The minor was accompanied by his or her parent, guardian, or other responsible adult;
“B. The minor was engaged in a lawful employment activity or was going to or returning home from his or her place of employment;
“C. The minor was involved in an emergency situation;
“D. The minor was going to, attending, or returning home from an official school, religious, or other recreational activity sponsored and/or supervised by a public entity or a civic organization;
“E. The minor was in the public place for the specific purpose of exercising fundamental rights such as freedom of speech or religion or the right of assembly protected by the First Amendment of the United States Constitution or Article I of the Constitution of the State of New York, as opposed to generalized social association with others; or
“F. The minor was engaged in interstate travel” (Rochester City Code § 45-4).

Under section 45-6 of the City Code, “[a] police officer may approach a person who appears to be a minor in a public place during prohibited hours to request information, including the person’s name and age and reason for being in the public place” and “may detain a minor or take a minor into custody based on a violation of [the curfew] if the police officer . . . [reasonably believes that the [curfew has been violated] and . . . that none of the exceptions . . . apply” (Rochester City Code § 45-6 [A], [B] [1], [2]). “A police officer who takes a minor into custody based on a violation of [the curfew] [must] take the minor to a location designated by the Chief of Police” (Rochester City Code § 45-6 [C]). Additionally, the ordinance states that “a violation of [the curfew] shall constitute a ‘violation’ as . . . defined in the . . . Penal Law” (Rochester City Code § 45-5).

The “Findings and purpose” with respect to the curfew were set forth by the City Council in section 45-1. They state that

“A. A significant number of minors are victims of crime and are suspects in crimes committed during the nighttime hours, hours during which minors should generally be off the streets and getting the sleep necessary for their overall health and quality of life. Many of these victimizations and criminal acts have occurred on the streets at night and have involved violent crimes, including the murders of teens and preteens.
“B. While parents have the primary responsibility to provide for the safety and welfare of minors, the City also has a substantial interest in the safety and welfare of minors. Moreover, the City has an interest in preventing crime by minors, promoting parental supervision through the establishment of reasonable standards, and in providing for the well-being of the general public.
“C. A curfew will help reduce youth victimization and crime and will advance the public safety, health and general welfare of the citizens of the City” (Rochester City Code § 45-1).

Plaintiffs, father and son, commenced the instant action challenging the validity of the curfew. They seek a declaration that the ordinance is unconstitutional and to enjoin defendants, the City of Rochester (City) and other city officials, from enforcing the ordinance on the grounds that the curfew violated Jiovon’s federal and state constitutional rights to freedom of movement, freedom of expression and association, and equal protection under the law, and Thomas’ due process rights under the Federal and State Constitutions to raise his children without undue interference from the government. In addition, plaintiffs assert that the ordinance conflicts with, among other statutes, section 305.2 of the Family Court Act and section 30.00 of the Penal Law. Supreme Court granted the City’s motion to dismiss finding that the curfew (1) was not inconsistent with New York statutes, (2) did not violate the constitutional rights of the minor, (3) did not unreasonably interfere with the rights of the parent, and (4) was not facially defective.

Declaring the ordinance unconstitutional, the Appellate Division, with two Justices dissenting, reversed and enjoined its enforcement. The court determined that the curfew was inconsistent with Family Court Act § 305.2 and Penal Law § 30.00 because it authorized what was indistinguishable from a warrantless arrest of a minor under the age of 16 upon an alleged violation of the curfew and created criminal responsibility for a “violation” as defined in the Penal Law (56 AD3d at 144-145). The court further determined that, as to minors between the ages of 16 and 17, the curfew violated the constitutional rights of both the parent and. child. The court held that neither the crime statistics for the City nor the statements and opinions from political officials and the Chief of Police provided the requisite nexus to withstand even intermediate scrutiny; in other words, there was no demonstrated substantial relationship between the ordinance and its stated goals (id. at 147-149). The court also determined that the curfew impermissibly interfered with parents’ fundamental substantive due process right to direct and control the upbringing of their children (id. at 150).

In arguing that the curfew should be upheld, the dissenting Justices concluded that intermediate scrutiny was the proper standard of review and that crime statistics from Dallas, Texas, a city with a similar curfew, provided the necessary substantial relationship because defendants “need not produce evidence to a scientific certainty” (id. at 153 [Lunn, J., dissenting]). The dissent argued that the ordinance imposed no unconstitutional burden on a minor’s First Amendment rights and that its interference with a parent’s due process rights was minimal. Additionally, the dissent found no inconsistency between the ordinance and Family Court Act § 305.2 because the ordinance only authorized a “temporary detention” and not an arrest (id. at 156-157 [Lunn, J., dissenting]). Defendants appealed to this Court as of right, and we now affirm on different grounds.

II

Plaintiffs challenge the curfew on multiple constitutional and nonconstitutional grounds. Because plaintiffs’ nonconstitutional arguments do not wholly dispose of this appeal, we address only their constitutional arguments here (see generally Matter of Clara C. v William L., 96 NY2d 244, 250 [2001]; id. at 251 [Levine, J., concurring]). Specifically, we focus primarily on the substantive due process rights of minors to enjoy freedom of movement and of parents to control the upbringing of their children.

Curfew ordinances have long been enacted in cities around the country and numerous cases, both state and federal, have addressed similar constitutional issues implicated by these curfews (see e.g. State v J.P., 907 So 2d 1101 [Fla 2005]; Treacy v Municipality of Anchorage, 91 P3d 252 [Alaska 2004]; Ramos v Town of Vernon, 353 F3d 171 [2d Cir 2003]; City of Sumner v Walsh, 148 Wash 2d 490, 61 P3d 1111 [2003]; Hutchins v District of Columbia, 188 F3d 531 [DC Cir 1999]; Schleifer by Schleifer v City of Charlottesville, 159 F3d 843 [4th Cir 1998]; Nunez by Nunez v City of San Diego, 114 F3d 935 [9th Cir 1997]; Qutb v Strauss, 11 F3d 488 [5th Cir 1993]; Johnson v City of Opelousas, 658 F2d 1065 [5th Cir 1981]). Recent decisions analyzing the constitutionality of curfews have differed as to the appropriate level of scrutiny to apply: some courts have favored intermediate scrutiny (see e.g. Hodgkins, 355 F3d at 1057; Ramos, 353 F3d at 181; Hutchins, 188 F3d at 541; Schleifer, 159 F3d at 847), while others have adopted strict scrutiny (see e.g. J.P., 907 So 2d at 1116; Treacy, 91 P3d at 265-266; Nunez, 114 F3d at 946; Qutb, 11 F3d at 492). Regardless of the level of scrutiny ultimately applied, these cases highlight a number of important factors relevant to constitutional review of a curfew ordinance.

Initially, we note that a municipality has general police powers and, under the traditional powers of parens patriae, a strong interest in preserving and promoting the welfare of children (see Hutchins, 188 F3d at 539). Plaintiffs do not dispute that the City Council, pursuant to its broad police powers, has the authority to enact a curfew ordinance. The issue, however, is whether that power was exercised in a manner consistent with the Federal and State Constitutions (see Ramos, 353 F3d at 172). We first turn to how the curfew may interfere with a minor’s constitutional right to freely move about in public.

“[F]reedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful—knowing, studying, arguing, exploring, conversing, observing and even thinking” (Aptheker v Secretary of State, 378 US 500, 520 [1964, Douglas, J., concurring]). For an adult, there is no doubt that this right is fundamental and an ordinance interfering with the exercise of such a right would be subject to strict scrutiny (see Chicago v Morales, 527 US 41, 54 [1999]). The critical question, however, is whether a minor has a corresponding right that is equally fundamental, and therefore warrants the same restrictive level of scrutiny.

In many situations, children do not possess the same constitutional rights possessed by their adult counterparts; for example, children are afforded lesser freedom of choice than adults with respect to marriage, voting, alcohol consumption, and labor. On the other hand, a child’s otherwise-criminal actions do not carry the same consequences as those of adults (see e.g. Penal Law § 30.00). The inherent differences between children and adults— specifically their immaturity, vulnerability, and need for parental guidance—have been recognized by the Supreme Court as the basis to justify treating children differently than adults under the Federal Constitution (see Bellotti v Baird, 443 US 622, 634-635 [1979]). “So ‘although children generally are protected by the same constitutional guarantees ... as are adults, the State is entitled to adjust its legal system to account for children’s vulnerability’ by exercising broader authority over their activities” (Hutchins, 188 F3d at 541, quoting Bellotti, 443 US at 635).

We find the rationale in Bellotti persuasive in the context of a curfew because it is hard to imagine that, even absent a curfew, the police may not take a vulnerable five-year-old child found alone at night on a city street into custody for the child’s own safety and well-being. Even if we assume that the police may not do the same to a 17 year old under the parens patriae function, an unemancipated minor still does not have the right to freely “come and go at will” (Vernonia School Dist. 47J v Acton, 515 US 646, 654 [1995]). Moreover, “juveniles, unlike adults, are always in some form of custody” (Schall v Martin, 467 US 253, 265 [1984]) and their right to free movement is limited by their parents’ authority to consent or prohibit such movement (see Ramos, 353 F3d at 182-183). As one court observed, “it would be inconsistent to find a fundamental right here, when the [Supreme] Court has concluded that the state may intrude upon the ‘freedom’ of juveniles in a variety of similar circumstances without implicating fundamental rights” (Hutchins, 188 F3d at 539, citing Prince v Massachusetts, 321 US 158, 166-167 [1944] [prohibiting children from selling magazines on the street]; Flores, 507 US 292, 301-303 [1993] [detention of deport-able juveniles]; Schall, 467 US at 263-264 [pretrial detention of juvenile delinquents]; Ginsberg v New York, 390 US 629, 637-643 [1968] [prohibiting sale of non-obscene material to minors]).

Rather than categorically applying strict scrutiny to a curfew which implicates a minor’s right to free movement simply because the same right, if possessed by an adult, would be fundamental, courts have found that intermediate scrutiny is better suited to address the complexities of curfew ordinances—it is sufficiently skeptical and probing to provide rigorous protection of constitutional rights yet flexible enough to accommodate legislation that is carefully drafted to address the vulnerabilities particular to minors (see Ramos, 353 F3d 171 [2003]; see also Schleifer, 159 F3d at 847; Hutchins, 188 F3d at 541). In the context of juvenile curfews, we find persuasive the reasoning which recognizes that although children have rights protected by the Constitution, they can be subject to greater regulation and control by the state than can adults (see Ramos, 353 F3d at 180-181).

Next, we turn to the constitutional right asserted by the father. Our precedent has repeatedly emphasized the “primacy of parental rights” to the care and custody of the child absent abandonment, surrender, or unfitness (Matter of Bennett v Jeffreys, 40 NY2d 543, 547 [1976]). Although it is settled that parents have a fundamental due process right, in certain situations, to raise their children in a manner as they see fit (see Wisconsin v Yoder, 406 US 205, 213-214 [1972]; see also Ginsberg, 390 US at 639), this is not the end of the analysis. Were the ordinance directly aimed at curbing parental control over their children, it might be that strict scrutiny would apply. However, that is not the case here.

Parental rights are not absolute and are subject to reasonable regulation (see Runyon v McCrary, 427 US 160, 178 [1976]; Prince, 321 US at 166 [“(a)cting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways”]). The Supreme Court has stated that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare” (Prince, 321 US at 167) specifically when it concerns the government’s interest in the “moral, emotional, mental, and physical welfare of the minor” (Stanley, 405 US at 652 [internal quotation marks omitted]). Because the purpose of the juvenile curfew is, in part, to prevent victimization of minors during nighttime hours, it easily falls within the realm of the government’s legitimate concern under Stanley.

Moreover, “to the extent that the curfew is enforced against minors moving about in public with no purpose or with an improper purpose” (Treacy, 91 P3d at 269), how it impinges on a parent’s rights is surely less clear and more indirect. Because the curfew is aimed primarily at minors, only peripherally burdening parents’ rights, the reflexive labeling of a fundamental right, and accompanying analysis under strict scrutiny, is inadequate for taking into account the complexities and governmental concerns of this kind of regulation. As with the minor’s due process rights, we agree that a searching review of the curfew is required but that a strict scrutiny analysis is not. We conclude that intermediate scrutiny, and the rationale of Ramos, are persuasive and we agree with the Appellate Division that the curfew is constitutionally infirm.

Ill

Under intermediate scrutiny, defendants must show that the ordinance is “substantially related” to the achievement of “important” government interests (see Craig v Boren, 429 US 190, 197 [1976]). Here, defendants assert that their governmental interest is to prevent minors from perpetrating and becoming victims of crime during nighttime hours. While this is clearly an important governmental interest, its expression does not end the intermediate scrutiny analysis. In addition to identifying an important governmental interest, defendants must show a substantial nexus between the burdens imposed by this curfew and the goals of protecting minors and preventing juvenile crime. The Supreme Court has explained that although the government need not produce evidence of this relationship to a scientific certainty (see Ginsberg, 390 US at 642-643), the “purpose of requiring [proof of] that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions” (Mississippi Univ. for Women v Hogan, 458 US 718, 725-726 [1982]).

Quite simply, the proof offered by the City fails to support the aims of the curfew in this case. As the Appellate Division observed, “a common theme of the [affidavits of political officials and affidavits and reports of police officials] is that city officials perceived a pressing need to respond to the problem of juvenile victimization and crime as a result of the . . . tragic deaths of three minors” (56 AD3d at 148). These incidents would not have been prevented by the curfew because two of the victims were killed during hours outside the curfew and the third, as a result of being adjudicated a person in need of supervision, was already subject to an individualized curfew. Thus, these incidents do not provide the necessary nexus between the curfew and the ordinance’s stated purpose.

Further, we conclude that the crime statistics produced by defendants do not support the objectives of Rochester’s nocturnal curfew. Although the statistics show that minors are suspects and victims in roughly 10% of violent crimes committed between curfew hours (11:00 p.m. to 5:00 a.m.), what they really highlight is that minors are far more likely to commit or be victims of crime outside curfew hours and that it is the adults, rather than the minors, who commit and are victims of the vast majority of violent crime (83.6% and 87.8% respectively) during curfew hours. The crime statistics are also organized by days of the week and despite that minors are 64% to 160% more likely to be a victim and up to 375% more likely to be a suspect of violent crimes on Saturdays and Sundays as compared to a given weekday, surprisingly, the curfew is less prohibitive on weekends. We also note that the methodology and scope of the statistics are plainly over-inclusive for purposes of studying the effectiveness of the curfew.

To be sure, minors are affected by crime during curfew hours but from the obvious disconnect between the crime statistics and the nighttime curfew, it seems that “no effort [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized” (Ramos, 353 F3d at 186). If, as the dissent argues, it is enough that from 2000 to 2005 a number of juveniles were victimized at night, then the same statistics would justify, perhaps even more strongly, imposing a juvenile curfew during all hours outside of school since far more victimization occur during those hours.

Nor can defendants simply rely on the studies and statistics of other municipalities with juvenile curfews without showing how the decrease in juvenile crime in those other cities is pertinent to Rochester. Without support from the City’s own empirical data, we conclude that the justifications made by the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient since they do not show a substantial relationship between the curfew and goals of reducing juvenile crime and victimization during nighttime hours.

We also conclude that the curfew imposes an unconstitutional burden on a parent’s substantive due process rights. The City asserts that the ordinance promotes “parental supervision” of minors (Rochester City Code § 45-1 [B]). But the curfew fails to offer parents enough flexibility or autonomy in supervising their children (cf. Qutb, 11 F3d 495-496 [exception for minor being on errand for parent]). Indeed, an exception allowing for parental consent to the activities of minors during curfew hours is of paramount importance to the due process rights of parents. “The . . . notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition” (Hodgson v Minnesota, 497 US 417, 446-447 [1990]). If a parental consent exception were included in this curfew, it would be a closer case—courts have upheld curfews having, among other things, such an exception as only minimally intrusive upon the parent’s due process rights (see e.g. Treacy, 91 P3d at 258; Hutchins, 188 F3d at 535; Schleifer, 159 F3d at 851-852; Qutb, 11 F3d at 490).

It is puzzling that the City purported to rely on curfews from other municipalities in the adoption of what was claimed to be a “similar” curfew ordinance yet failed to include the critical exceptions which supported the constitutionality of those other curfews. For example, in Hutchins, the court reasoned that the District of Columbia curfew, with exceptions for parental consent, actually enhanced parental authority rather than challenged it (see Hutchins, 188 F3d at 545) and in Qutb, the court found that the broad exceptions in a Dallas, Texas curfew only minimally intruded into the parents’ rights (see Qutb, 11 F3d at 495-496). But the Rochester curfew “does not allow an adult to pre-approve even a specific activity after curfew hours unless a custodial adult actually accompanies the minor. Thus, parents cannot allow their children to function independently at night, which some parents may believe is part of the process of growing up” (Nunez, 114 F3d at 952). Consequently, we conclude that the challenged curfew is not substantially related to the stated goals of promoting parental supervision.

Accordingly, the order of the Appellate Division should be affirmed without costs.

Graffeo, J. (concurring).

I vote to affirm because I conclude that the City of Rochester’s juvenile curfew ordinance must be invalidated since the law conflicts, in part, with the Family Court Act. I further believe that the objectionable portion of the curfew law cannot be severed from the remainder of the ordinance and, consequently, the ordinance is invalid in its entirety.

Rochester’s juvenile curfew ordinance specifies that children under the age of 17 cannot be in a public place between 11:00 p.m. and 5:00 a.m. Sunday through Thursday and from 12:00 a.m. to 5:00 a.m. on Friday and Saturday. There are delineated exceptions to the curfew, as set forth by the majority, where the minor can demonstrate that his or her conduct was covered by an exception. In drafting the curfew statute, the City Council decided that a minor who breaks curfew commits a violation as defined in the Penal Law. Under section 10.00 (3) of the Penal Law, a violation is an offense punishable by up to 15 days in jail. The curfew ordinance authorizes a police officer to “detain” or “take a minor into custody” if the officer reasonably believes that the minor has violated curfew and that none of the enumerated exceptions to the curfew restrictions apply (Rochester City Code § 45-6 [B]).

The State Constitution’s “home rule” provision (art IX, § 2) “confers broad police power upon local government relating to the welfare of its citizens” (New York State Club Assn, v City of New York, 69 NY2d 211, 217 [1987], affd 487 US 1 [1988]). This grant of authority includes the ability of a municipality to enact local laws regarding the “protection, order, conduct, safety, health and well-being of persons or property” within its borders (NY Const, art IX, § 2 [c] [ii] [10]; see Municipal Home Rule Law § 10 [1] [ii] [a] [12]). There are, however, important limitations on municipal police powers (see New York State Club Assn, v City of New York, 69 NY2d at 217). First, under the doctrine of conflict preemption, a “local government . . . may not exercise its police power by adopting a local law inconsistent with constitutional or general law” (id.). Second, under the doctrine of field preemption, a municipality “may not exercise its police power when the Legislature has restricted such an exercise by preempting the area of regulation” (id.; see e.g. Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372, 377 [1989]). Field preemption may occur by express legislative direction or may be “implied from a declaration of State policy by the Legislature ... or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” (Consolidated Edison Co. of NY. v Town of Red Hook, 60 NY2d 99, 105 [1983]).

Nothing in the laws of this State indicates that the Legislature intended to prohibit municipalities from enacting juvenile curfews. Through the exercise of its police powers, a municipality may be able to justify the need for a juvenile curfew as a matter of permissible local concern. A curfew that is designed to reduce juvenile crime and victimization has “some fair, just and reasonable connection” to the promotion of the safety and welfare of vulnerable minors (People v Bunis, 9 NY2d 1, 4 [1961] [internal quotation marks omitted]). Clearly, the City of Rochester was motivated by laudable public safety concerns in attempting to get children off the streets late at night and into the safety of their homes.

But the curfew ordinance in this case raises a conflict preemption concern because the Family Court Act limits the instances when police can take children into custody. Section 305.2 (2) of the Family Court Act specifies that a police officer “may take a child under the age of sixteen into custody without a warrant in cases in which he may arrest a person for a crime under article one hundred forty of the criminal procedure law” (emphasis added). The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00 [6]). An infraction of the Rochester ordinance results in a “violation,” punishable by up to 15 days in jail. Because a violation is not a “crime” for the purposes of section 305.2 (2), it necessarily follows that the constraints of Family Court Act § 305.2 prohibit the City of Rochester from authorizing the custodial detention of children aged 15 and under (see Matter of Victor M., 9 NY3d 84, 87 [2007]; Matter of Michael G., 99 Misc 2d 699, 701 [Family Ct, Rockland County 1979]). Based on conflict preemption principles, this provision of Rochester’s curfew ordinance contradicts the Family Court Act and is therefore invalid.

The City of Rochester responds that its ordinance does not violate state law because it merely authorizes the police to engage in the “temporary detention” of a child, not to make an arrest. Semantics aside, the reality is that the ordinance permits a police officer to take custody of a minor, perhaps handcuff the offender, conduct a pat-down search (which could lead to the discovery of illegal contraband or a weapon), place the child in the back of a police car and transport the child to a detention facility. This, in my view, bears all of the hallmarks of a traditional arrest, not some short-term custodial intervention conducted solely for the safety and welfare of the child detained. And the punishment that can be inflicted for a violation of Rochester’s curfew ordinance makes it easily distinguishable from Matter of Shannon B. (70 NY2d 458 [1987]), which upheld the authority of a police officer to detain a truant student, because truancy, unlike a violation of Rochester’s curfew law, is not punishable by incarceration.

Nor is it possible to sever the offending provision of the ordinance from the remainder of the law. Under our traditional severability analysis, the

“ ‘question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots’ ” (CWM Chem. Serus., L.L.C. v Roth, 6 NY3d 410, 423 [2006], quoting People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60 [1920], cert denied 256 US 702 [1921]).

In conducting this review, we first examine

“the statute and its legislative history to determine the legislative intent and what the purposes of the new law were, and second, an evaluation of the courses of action available to the court in light of that history to decide which measure would have been enacted if partial invalidity of the statute had been foreseen” (CWM Chem. Serus., 6 NY3d at 423, quoting Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191, 196 [1984]).

Rochester’s curfew ordinance does not contain a severability provision and nothing in the record before us indicates that the City Council considered this issue. From a practical perspective, severing the provision of the law that conflicts with the Family Court Act would make the curfew apply only to persons who are 16 years old. It is unlikely that the City of Rochester was interested in such a limited curfew, especially since the enactment of the ordinance was motivated in significant part by the murders of three local children, all of whom were under the age of 16. And restricting the curfew only to 16 year olds would result in a law that covers a much smaller percentage of the minors that the City Council was seeking to protect. I therefore conclude that the objectionable portion of the ordinance cannot be severed and Rochester’s curfew law is void in its entirety.

Pigott, J. (dissenting).

At community meetings addressing violent crime in the City of Rochester in the mid-2000s, the Chairman of the City Council’s Public Safety Committee was frequently asked by members of the public about the feasibility of a curfew in that city. The discussions occurred in the wake of three killings of children in Rochester, all of which occurred late at night. The councilman traveled to Minneapolis, accompanied by two Rochester police commanders, to investigate the curfew in place there. The Rochester Chief of Police concluded, after meetings with the police commanders and other staff, that a curfew ordinance such as the one successful in Minneapolis would be an effective tool for preventing juveniles from committing, or becoming the victims of, nighttime crime. Public hearings were held, and the City Council received a large quantity of information concerning curfews implemented in other U.S. cities. The Mayor of Rochester, a former Rochester police chief, strongly advocated passage of a curfew ordinance.

In 2006, the Rochester City Council adopted a curfew ordinance, codified as chapter 45 of the Municipal Code of the City of Rochester, which took effect on September 5 of that year. The curfew is applicable—in “any public place” in the City of Rochester—to persons under the age of 17. It applies between the hours of 11:00 p.m. and 5:00 a.m., except that it does not apply until midnight on Friday and Saturday nights. First introduced as a three-month pilot program, the Rochester curfew has been extended several times, most recently to December 31, 2009.

The many exceptions built into the curfew ordinance and the methods of its application are described in the opinion above (see majority op at 41-42). It is worth adding that a Rochester Police Department General Order provides that the “location designated by the Chief of Police” referred to in the ordinance (see Rochester City Code § 45-6 [C]) is “a curfew facility designated by the Chief of Police,” where police will assist staff to notify the minor’s parent or guardian of the minor’s location, with a view to reuniting the two (see Rochester Police Department General Order 425). The designated curfew center is at Hillside Children’s Center, in Rochester.

With this background in mind, I turn to the constitutional due process challenges that are the basis for the majority opinion. The majority begins by discussing the “substantive due process rights of minors to enjoy freedom of movement” (majority op at 44). Initially, it is not clear whether the majority is invoking the constitutional right to travel (see e.g. Saenz v Roe, 526 US 489 [1999]; Shapiro v Thompson, 394 US 618 [1969]) or “the freedom to loiter for innocent purposes . . . protected by the Due Process Clause” (Chicago v Morales, 527 US 41, 53 [1999]; see Memorial Hospital v Maricopa County, 415 US 250, 255-256 [1974] [observing that the right to travel cannot simply mean the right to movement and declining to decide whether the right to interstate travel recognized in Shapiro has an analogue in intrastate travel]). But this distinction is of no consequence here because, as the majority notes, the critical question is whether the fundamental right of adults to free movement extends to unsupervised minors.

The majority appears to accept the arguments that recently led the United States Court of Appeals for the District of Columbia Circuit to conclude that children have no fundamental right to free movement. “[I]t would be inconsistent to find a fundamental right here, when the [Supreme] Court has concluded that the state may intrude upon the ‘freedom’ of juveniles in a variety of similar circumstances without implicating fundamental rights” (majority op at 46, quoting Hutchins v District of Columbia, 188 F3d 531, 539 [DC Cir 1999]). But instead of following this principle to its logical conclusion and applying a rational basis standard of review in assessing plaintiffs’ free movement challenge, the majority selects the intermediate scrutiny standard for the question-begging reason that “courts have found that intermediate scrutiny is better suited to address the complexities of curfew ordinances” (majority op at 47).

The Supreme Court has observed that “unemancipated minors lack some of the most fundamental rights of self-determination-including even the right of liberty in its narrow sense, i.e., the right to come and go at will” ("Vernonia School Dist. 47J v Acton, 515 US 646, 654 [1995]). Here the law mirrors common sense. “Our society recognizes that juveniles in general are in the earlier stages of their emotional growth, that their intellectual development is incomplete, that they have had only limited practical experience, and that their value systems have not yet been clearly identified or firmly adopted” (Schall v Martin, 467 US 253, 265-266 n 15 [1984], quoting People ex rel. Wayburn v Schupf, 39 NY2d 682, 687 [1976]). Because of the immaturity and consequent vulnerability of children, “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults,” even where the freedom that is curtailed is one that would be constitutionally protected were the child an adult (Prince v Massachusetts, 321 US 158, 170 [1944]).

Even where constitutionally protected freedoms of choice are implicated,

“[s]tates validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences . . . [because] during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them” {Bellotti v Baird, 443 US 622, 635 [1979]).

In other words, because children often lack the capacity to make important decisions for themselves, “[t]hey are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. In this respect, the juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the State’s parens patriae interest in preserving and promoting the welfare of the child.” CSchall, 467 US at 265 [internal quotation marks and citations omitted].) All states limit children’s freedom of movement by requiring them to attend school for much of every weekday—a requirement never thought to call for either strict or intermediate scrutiny. As the Supreme Court has succinctly expressed it, “juveniles, unlike adults, are always in some form of custody” (Reno v Flores, 507 US 292, 302 [1993], quoting Schall, 467 US at 265).

These well-established premises of constitutional jurisprudence lead to the conclusion that the fundamental right to travel or movement does not extend to unsupervised minors. Because parents have the right to control or forbid children’s travel, there can be no such thing as a child’s fundamental right to free movement. Quite simply, children do not have the right to wander the streets freely at night. Because the curfew ordinance does not impinge on any cognizable constitutional right of minors, its restriction of minors’ movements should therefore be subject to rational basis review (see Ramos v Town of Vernon, 353 F3d 171, 190-191 [2d Cir 2003, Winter, J., dissenting]).

On the other hand, the majority’s choice of intermediate scrutiny to evaluate plaintiffs’ assertion that the curfew ordinance violates the substantive due process rights of parents to make decisions concerning the care, custody and control of their children makes sense {see majority op at 47-48). The majority apparently does not dispute that preventing minors from committing or becoming the victims of nighttime crime is an important government interest {see majority op at 48). The only remaining question then is whether the curfew ordinance is substantially related to this important objective. I believe it is.

The record contains extensive affidavits of public officials who were involved in the adoption of the curfew ordinance, and the affidavits and reports of experienced police officials responsible for its enforcement, which describe the considerable amount of investigation and research that was carried out before the City Council adopted the ordinance. The record also contains crime statistics for the City, and information concerning the implementation of similar curfews in other municipalities. The decision to enact the curfew, while based in part on objective data, was also based in substantial part on the subjective judgment of experienced civic leaders, who believed the ordinance to be the best way of dealing with a very troubling problem. Their judgment is, in my opinion, entitled to considerable deference. The majority gives it none.

Instead, the majority focuses on the statistics, but does so in a selective manner. It does not mention the statistics which demonstrate that between 2000 and 2005 most of the 13 juvenile murder victims in Rochester would have been in violation of the ordinance at the time of the murders. Nor does it mention that 45% of homicides in Rochester occurred during the curfew hours, a surprisingly high percentage given that the curfew hours make up less than 25% of the hours in a week.

The majority casts a skeptical eye on the statistics, writing that they show “that minors are far more likely to commit or be victims of crime outside curfew hours and that it is the adults, rather than the minors, who commit and are victims of the vast majority of violent crime . . . during curfew hours” (majority op at 49). Here, I respectfully suggest, the majority jumbles together two platitudes. Of course minors are more likely to commit or be victims of crime outside curfew hours. For one thing, the curfew hours comprise only 40 out of the 168 hours in a week. As to the likelihood of becoming crime victims, most children are at home during the curfew hours, as the defendant Mayor noted. But it certainly does not follow that a child who goes out at night is less likely to become the victim of a crime than one who goes out during the day. Again, it is completely unsurprising that adults commit and are victims of most crimes during curfew hours. Adults commit more crimes than children at all hours. Indeed, this may simply be an instance of the general truth that adults, who make up some three quarters of the population, are more likely to do anything.

From these platitudes, the majority infers a “disconnect between the crime statistics and the nighttime curfew . . . [N]o effort [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized” (majority op at 49, quoting Ramos v Town of Vernon, 353 F3d 171, 186 [2d Cir 2003] [internal quotation marks omitted]). But here, under the guise of assessing whether the curfew ordinance is substantially related to a government objective, the majority essentially withdraws its earlier concession that protecting minors from becoming the victims or perpetrators of crimes is an important government interest. In essence, the majority is asserting that if adults commit and become victims of more crimes than children, then protecting children from crime cannot be an important city objective, and that if more crimes are committed during the day than at night, then preventing nighttime crime cannot be an important city objective. The problem with that reasoning is obvious.

Putting aside the Rochester crime statistics, which suggest that a significant proportion of violent crime victims in that city are children, I do not believe that it is the judiciary’s place to decide that protecting even a small number of minors from crime is an unimportant objective. I would have thought that protecting children from becoming the victims or perpetrators of violent crime is one of the most important goals a municipality could try to achieve, especially in the wake of a series of nighttime murders of minors.

Turning to plaintiffs’ challenge based on parental authority, the majority observes that this would be a closer case if the curfew had included an exception for parental consent (majority op at 50), a critical “errand” exception present in curfew ordinances upheld in Anchorage, Alaska (Treacy v Municipality of Anchorage, 91 P3d 252 [Alaska 2004]), the District of Columbia (Hutchins), Charlottesville, Virginia (Schleifer by Schleifer v City of Charlottesville, 159 F3d 843 [4th Cir 1998]), and Dallas, Texas (Qutb v Strauss, 11 F3d 488, 490 [5th Cir 1993]). However, even without that exception, I believe that the curfew ordinance in Rochester is merely a minimal intrusion on parents’ rights. If the standard of review in this regard were strict scrutiny, I might conclude that the ordinance is not the least restrictive alternative means of achieving the City’s purpose. But, applying intermediate scrutiny as the majority professes to, I believe that the curfew—which contains exceptions for minors who are accompanied by a parent, guardian or other responsible adult, those engaged in lawful employment or en route to or from such employment, those facing emergency circumstances, those who are “going to, attending, or returning home from an official school, religious, or other recreational activity sponsored and/or supervised by a public entity or a civic organization,” those who are in a public place “for the specific purpose of exercising fundamental rights such as freedom of speech or religion or the right of assembly protected by the First Amendment of the United States Constitution or Article I of the Constitution of the State of New York,” and those engaged in interstate travel—is narrowly tailored to serve its important government purpose of preventing juvenile crime (Rochester City Code § 45-4).

I do not believe that the Rochester city ordinance—replete as it is with exceptions guiding the conduct of police officers taking minors into what the majority concedes is protective custody (majority op at 42 n 2)—violates minors’ rights under the Federal or State Constitution. Equipped with a parental consent exception, I think it might have been a model city curfew. It is regrettable that a curfew was determined to be necessary in Rochester; but it is equally regrettable if this Court prevents Rochester from implementing a reasonable plan to protect its youth.

For these reasons, I respectfully dissent.

Chief Judge Lippman and Judges Ciparick and Read concur with Judge Jones; Judge Graffeo concurs in result in a separate opinion; Judge Pigott dissents in another opinion in which Judge Smith concurs.

Order affirmed, without costs.

      . A responsible adult is defined as “[a] person 18 years of age or older specifically authorized by law or by a parent or guardian to have custody and control of a minor” (Rochester City Code § 45-2).

      . Rochester Police Department General Order 425, titled “Curfew Ordinance Enforcement,” provides for actions a police officer can take in his or her discretion (such as directing the minor to proceed home with a warning, take the minor into protective custody, or transport the minor to a parent, guardian, or responsible adult or to a curfew facility) and procedures for searching, transporting, and handcuffing minors taken into custody for a violation of the curfew (56 AD3d 139, 143 [2008]).

      . The City’s crime statistics showed that “minors [were] substantially more likely to be involved in crime or to be victims of crime during hours outside the curfew” and “the vast majority of violent crime during curfew hours is committed by persons over 18, and that adults are far more likely to be victims of such crime during those hours” (56 AD3d at 148).

      .  We note that this case was not rendered moot when plaintiff Jiovon turned 17 because he may still be detained under the curfew if, to an officer, he appears to be under 17 and fails to offer proof of his age.

      . Looking at the hourly breakdown of minors as crime suspects and victims, more than three quarters (75% to 86%) of all crimes that minors commit and are victims of take place during non-curfew hours.

      . For tallying the number of crimes committed by minors, the statistics include minors from ages “0-17” notwithstanding that the curfew does not apply to 17 year olds. Although the curfew only applies to minors in public areas, the statistics provide no indication of where the crimes counted took place (i.e., whether on private or public property).

      . Many of the cases cited by defendants which upheld the constitutionality of a curfew have three exceptions: (1) where the minor is on an errand at the direction of the parent, (2) where the minor is on the sidewalk that abuts the minor’s or the next-door-neighbor’s residence, and (3) where the minor is generally exercising First Amendment rights (as opposed to being in public specifically for the exercise of such rights) (see Treacy, 91 P3d at 258; Hutchins, 188 F3d at 535; Schleifer, 159 F3d at 851-852; Qutb, 11 F3d at 490).

       The dissent concludes that there is no preemption problem. But this ignores the fact that a curfew infraction is a “violation” as that term is defined in the Penal Law, thereby authorizing the possible imposition of a sentence of up to 15 days in jail for a minor who breaks curfew.

       I cannot accept the concurring view that taking a minor to the curfew center “bears all of the hallmarks of a traditional arrest” (concurring op at 53) and that the ordinance therefore violates Family Court Act § 305.2 (providing that warrantless arrest of a juvenile is authorized only in cases where an adult could be arrested for a crime). The temporary detention of a juvenile until a responsible adult takes charge of him-—authorized by an ordinance enacted for the minor’s protection, rather than prosecution—is within the scope of a municipality’s police power (see generally Matter of Shannon B., 70 NY2d 458, 462-463 [1987]) and not prohibited by Family Court Act § 305.2. Moreover, I reject the idea that the City of Rochester could make an invalid curfew valid simply by repealing the language stating that breaking curfew is a “violation.”