text:
    [806 NE2d 480, 774 NYS2d 472]
    In the Matter of K.L., Appellant. Glenn Martin, M.D., as Director of the Department of Psychiatry at Queens Hospital Center, Respondent; Attorney General of the State of New York, Intervenor-Respondent.
    Argued January 7, 2004;
    decided February 17, 2004

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, Mineóla (Dennis B. Feld, Sidney Hirschfeld and Lisa Volpe of counsel), for appellant.
    I. Due process and equal protection require a finding of incapacity before an individual may be stripped of the fundamental right to control the course of his own medical treatment in a non-emergency situation. (Schloendorff v Society of N.Y. Hosp., 211 NY 125; Matter of Storar, 52 NY2d 363; Rivers v Katz, 67 NY2d 485; Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Buttonow, 23 NY2d 385; Matter of St. Luke’s-Roosevelt Hosp. Ctr. [Marie H.—City of New York], 89 NY2d 889; Matter of Coates, 9 NY2d 242; People ex rel. Morriale v Branham, 291 NY 312; Matter of Harry M., 96 AD2d 201; People v Bailey, 21 NY2d 588.) II. Appellant must be afforded notice and an opportunity to be heard prior to being detained for a 72-hour observation period pursuant to Mental Hygiene Law § 9.60 (n). (Morrissey v Brewer, 408 US 471; Matter of Pannell v Jones, 36 NY2d 339; C.R. v Adams, 649 F2d 625; Lewis v Donahue, 437 F Supp 112; Mathews v Eldridge, 424 US 319; Addington v Texas, 441 US 418; O’Connor v Donaldson, 422 US 563; Humphrey v Cady, 405 US 504; Savastano v Nurnberg, 77 NY2d 300; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500.) III. In order to comply with the Fourth Amendment of the United States Constitution and article I, § 12 of the New York Constitution, Mental Hygiene Law § 9.60 (n) must be read to require that the clinician have a reasonable belief that the individual subject to an assisted outpatient treatment order is in need of hospitalization. (Glass v Mayas, 984 F2d 55; Kerman v City of New York, 261 F3d 229; Ahern v O’Donnell, 109 F3d 809; Villanova v Abrams, 972 F2d 792; Monday v Oullette, 118 F3d 1099; Mathews v Eldridge, 424 US 319; Humphrey v Cady, 405 US 504; O’Connor v Ortega, 480 US 709; New Jersey v T.L.O., 469 US 325; Marshall v Barlow’s, Inc., 436 US 307.)

      Michael A. Cardozo, Corporation Counsel, New York City (Stephen J. McGrath, Leonard Koerner and Francis F. Caputo of counsel), for respondent.
    I. Assisted outpatient treatment orders under Kendra’s Law do not violate due process, as interpreted in Rivers v Katz (67 NY2d 485 [1986]). (Matter of Urcuyo, 185 Misc 2d 836; Addington v Texas, 441 US 418; Matter of Donaldson v Daley, 206 AD2d 298; Matter of Guia G. [Maimonides Med. Ctr.], 173 Misc 2d 111; McCabe v Life-Line Ambulance Serv., 77 F3d 540, 519 US 911; Matter of Seltzer v Hogue, 187 AD2d 230; Project Release v Prevost, 722 F2d 960; Matter of Mausner v William E., 264 AD2d 485; Matter of Mary Ann D., 179 AD2d 724; Matter of McConnell, 147 AD2d 881, 74 NY2d 759.) II. The procedure for inpatient evaluation after noncompliance with assisted outpatient treatment is constitutional. Respondent’s equal protection claim is meritless. (Project Release v Prevost, 722 F2d 960; Charles W. v Maul, 214 F3d 350; McCabe v Life-Line Ambulance Serv., 77 F3d 540; Addington v Texas, 441 US 418; Doby v DeCrescenzo, 171 F3d 858; Matter of Urcuyo, 185 Misc 2d 836; Matter of George L., 85 NY2d 295; Matter of Seltzer v Hogue, 187 AD2d 230; Matter of Consilvio v Diana W., 269 AD2d 310; Matter of Anthony M. v Sanchez, 229 AD2d 322.)

      Eliot Spitzer, Attorney General, New York City (Sachin S. Pandya, Caitlin J. Halligan and Michael S. Belohlavek of counsel), in his statutory capacity under Executive Law § 71.
    I. An assisted outpatient treatment order does not deprive a person of his or her liberty to refuse medical treatment, and thus does not trigger heightened scrutiny under the New York Constitution’s Due Process Clause. (Pringle v Wolfe, 88 NY2d 426; People ex rel. Carter v Rice, 135 NY 473; Rivers v Katz, 67 NY2d 485; Matter of Storar, 52 NY2d 363; Schloendorff v Society of N.Y. Hosp., 211 NY 125; Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Matter of Urcuyo, 185 Misc 2d 836; Matter of VonderHeide, 72 NY2d 658; People v Marrero, 69 NY2d 382.) II. K.L.’s constitutional challenges to the temporary removal authority of section 9.60 (n) of the Mental Hygiene Law are meritless. (Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; Cherry v Koch, 126 AD2d 346; Cohen v State of New York, 94 NY2d 1; People v David W., 95 NY2d 130; Mathews v Eldridge, 424 US 319; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Parham v J.R., 442 US 584; Savastano v Nurnberg, 77 NY2d 300; Project Release v Prevost, 722 F2d 960; Morrissey v Brewer, 408 US 471.)

      Disability Advocates, Inc., Albany {Cliff Zucker of counsel), New York Lawyers for the Public Interest, Inc., New York City {John A. Gresham of counsel), New York Civil Liberties Union (Beth Haroules of counsel), and Judge David L. Bazelon Center for Mental Health Law, Washington, D.C. {Michael Allen of counsel), for New York Lawyers for the Public Interest, Inc., and others, amici curiae.
    I. No treatment order under Mental Hygiene Law § 9.60 may be issued without a judicial finding of lack of capacity to make treatment decisions. (Schloendorff v Society of N.Y. Hosp., 211 NY 125; Rivers v Katz, 67 NY2d 485; Matter of Fosmire v Nicoleau, 75 NY2d 218; Vitek v Jones, 445 US 480; Humphrey v Cady, 405 US 504; Addington v Texas, 441 US 418; O’Connor v Donaldson, 422 US 563; Kerman v City of New York, 261 F3d 229; Bankert by Bankert v United States, 937 F Supp 1169; Matter of Francis S., 206 AD2d 4, 87 NY2d 554.) II. The science supporting the Rivers v Katz decision (67 NY2d 485 [1986]) has only become clearer in the intervening years. III. The enforcement procedure in Mental Hygiene Law § 9.60 (n) requires judicial construction to be constitutional. (Vitek v Jones, 445 US 480; Humphrey v Cady, 405 US 504; Glass v Mayas, 984 F2d 55; O’Connor v Donaldson, 422 US 563; People v Bora, 83 NY2d 531; People v Reynolds, 71 NY2d 552; Kerman v City of New York, 261 F3d 229; Charles W. v Maul, 214 F3d 350; Project Release v Prevost, 722 F2d 960; Jackson v Indiana, 406 US 715.)
   OPINION OF THE COURT

Chief Judge Kaye.

On January 3, 1999, Kendra Webdale was pushed to her death before an oncoming subway train by a man diagnosed with paranoid schizophrenia who had neglected to take his prescribed medication. Responding to this tragedy, the Legislature enacted Mental Hygiene Law § 9.60 (L 1999, ch 408 [Kendra’s Law]), thereby joining nearly 40 other states in adopting a system of assisted outpatient treatment (AOT) pursuant to which psychiatric patients unlikely to survive safely in the community without supervision may avoid hospitalization by complying with court-ordered mental health treatment.

In enacting the law, the Legislature found that “there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent or suicidal, or require hospitalization” (L 1999, ch 408, § 2). And in mandating that certain patients comply with essential treatment pursuant to a court-ordered written treatment plan, the Legislature further found that “there are mentally ill persons who can function well and safely in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization. . . . [S]ome mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and caregivers often must stand by helplessly and watch their loved ones and patients decompensate” (id.).

Studies undertaken in other jurisdictions with AOT laws have found that outpatients subject to court orders had fewer psychiatric admissions, spent fewer days in the hospital and had fewer incidents of violence than outpatients without court orders (see Mem of Off of Atty Gen, Bill Jacket, L 1999, ch 408, at 13; Marvin S. Swartz et al., Can Involuntary Outpatient Commitment Reduce Hospital Recidivism?: Findings From a Randomized Trial With Severely Mentally Ill Individuals, 156 Am J Psychiatry 1968 [1999]). Kendra’s Law was thus adopted in an effort to “restore patients’ dignity, and . . . enable mentally ill persons to lead more productive and satisfying lives” (L 1999, ch 408, § 2), while at the same time reducing the risk of violence posed by mentally ill patients who refuse to comply with necessary treatment.

In October 2000, a petition was filed seeking an order authorizing assisted outpatient treatment for respondent K.L. Respondent suffered from schizoaffective disorder, bipolar type, and had a history of psychiatric hospitalization and noncompliance with prescribed medication and treatment, as well as aggressiveness toward family members during periods of decompensation. The treatment prescribed in the proposed order included a regimen of psychiatric outpatient care, case management, blood testing, individual therapy and medication. Pursuant to the plan, respondent was required in the first instance to orally self-administer Zyprexa. If, however, he was “non-compliant with above,” the plan required that he instead voluntarily submit himself to the administration of Haldol Decanoate by medical personnel.

Respondent opposed the petition, challenging the constitutionality of Kendra’s Law in a number of respects. Supreme Court and the Appellate Division rejected each of respondent’s constitutional arguments, as do we.

I.

Before a court may issue an order for assisted outpatient treatment, the statute requires that a hearing be held at which a number of criteria must be established, each by clear and convincing evidence. The court must find that (1) the patient is at least 18 years of age; (2) the patient suffers from a mental illness; (3) the patient is unlikely to survive safely in the community without supervision, based on a clinical determination; (4) the patient has a history of lack of compliance with treatment for mental illness that has either (a) at least twice within the last 36 months been a significant factor in necessitating hospitalization, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition, or (b) resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last 48 months, not including any period in which the person was hospitalized or incarcerated immediately preceding the filing of the petition; (5) the patient is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan; (6) in view of the patient’s treatment history and current behavior, the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others; and (7) it is likely that the patient will benefit from assisted outpatient treatment (see Mental Hygiene Law § 9.60 [c]). The court must also find by clear and convincing evidence that the assisted outpatient treatment sought is the least restrictive treatment appropriate and feasible for the patient (see Mental Hygiene Law § 9.60 [j] [2]).

If an assisted outpatient later fails or refuses to comply with treatment as ordered by the court; if efforts to solicit voluntary compliance are made without success; and if in the clinical judgment of a physician, the patient may be in need of either involuntary admission to a hospital or immediate observation, care and treatment pursuant to standards set forth in the Mental Hygiene Law, then the physician can seek the patient’s temporary removal to a hospital for examination to determine whether hospitalization is required (see Mental Hygiene Law § 9.60 [n]).

II.

Respondent contends that the statute violates due process because it does not require a finding of incapacity before a psychiatric patient may be ordered to comply with assisted outpatient treatment. He asks that we read such a requirement into the law in order to preserve its constitutionality.

In Rivers v Katz (67 NY2d 485 [1986]), we held that a judicial finding of incapacity to make a reasoned decision as to one’s own treatment is required before an involuntarily committed patient may be forcibly medicated with psychotropic drugs against his or her will. Mental Hygiene Law § 9.60, however, neither authorizes forcible medical treatment in the first instance nor permits it as a consequence of noncompliance with court-ordered AOT.

Nevertheless, respondent urges that, under Rivers, a showing of incapacity is required before a psychiatric patient may be ordered by a court to comply with any assisted outpatient treatment. Although respondent—in asking us to read a requirement of incapacity into the statute—disclaims any effort to strike down the law, such a reading would have the effect of eviscerating the legislation, inasmuch as the statute presumes that assisted outpatients are capable of actively participating in the development of their written treatment plans, and specifically requires that they be afforded an opportunity to do so (see Mental Hygiene Law § 9.60 [i] [1]). Indeed, the law makes explicit that “[t]he determination by a court that a patient is in need of assisted outpatient treatment under this section shall not be construed as or deemed to be a determination that such patient is incapacitated pursuant to article eighty-one” of the Mental Hygiene Law (governing guardianship proceedings) (Mental Hygiene Law § 9.60 [o]).

Respondent concedes that a large number of patients potentially subject to court-ordered assisted outpatient treatment would be ineligible for the program if a finding of incapacity were required. In enacting Kendra’s Law, the Legislature determined that certain patients capable of participating in their own treatment plans could remain safely in the community if released subject to the structure and supervision provided by a court-ordered assisted treatment plan. Such a plan may enable patients who might otherwise require involuntary hospitalization to live and work freely and productively through compliance with necessary treatment.

Since Mental Hygiene Law § 9.60 does not permit forced medical treatment, a showing of incapacity is not required. Rather, if the statute’s existing criteria satisfy due process—as in this case we conclude they do—then even psychiatric patients capable of making decisions about their treatment may be constitutionally subject to its mandate.

While “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body” (Schloendorff v Society of N.Y. Hosp., 211 NY 125, 129 [1914]) and to “control the course of his medical treatment” (Matter of Storar, 52 NY2d 363, 376 [1981]), these rights are not absolute. As we made clear in Rivers, the fundamental right of mentally ill persons to refuse treatment may have to yield to compelling state interests (67 NY2d at 495). The state “has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill” (Addington v Texas, 441 US 418, 426 [1979]). Accordingly, where a patient presents a danger to self or others, the state may be warranted, in the exercise of its police power interest in preventing violence and maintaining order, in mandating treatment over the patient’s objection. Additionally, the state may rely on its parens patriae power to provide care to its citizens who are unable to care for themselves because of mental illness (see Rivers, 67 NY2d at 495-496).

The restriction on a patient’s freedom effected by a court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force of the order lies solely in the compulsion generally felt by law-abiding citizens to comply with court directives. For although the Legislature has determined that the existence of such an order and its attendant supervision increases the likelihood of voluntary compliance with necessary treatment, a violation of the order, standing alone, ultimately carries no sanction. Rather, the violation, when coupled with a failure of efforts to solicit the assisted outpatient’s compliance, simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization.

Of course, whenever a physician determines that a patient is in need of involuntary commitment—whether such a determination came to be made after an assisted outpatient failed to comply with treatment or was reached in the absence of any AOT order at all—the patient may be hospitalized only if the standards for such commitment contained in the Mental Hygiene Law are satisfied. These standards themselves satisfy due process (see Project Release v Prevost, 722 F2d 960 [2d Cir 1983]). If, however, the noncompliant patient is not found to be in need of hospitalization, the inquiry will be at an end and the patient will suffer no adverse consequence. For as the statute explicitly provides, “Failure to comply with an order of assisted outpatient treatment shall not be grounds for involuntary civil commitment or a finding of contempt of court” (Mental Hygiene Law § 9.60 [n]). Moreover, any restriction on an assisted outpatient’s liberty interest felt as a result of the legal obligation to comply with an AOT order is far less onerous than the complete deprivation of freedom that might have been necessary if the patient were to be or remain involuntarily committed in lieu of being released on condition of compliance with treatment.

In any event, the assisted outpatient’s right to refuse treatment is outweighed by the state’s compelling interests in both its police and parens patriae powers. Inasmuch as an AOT order requires a specific finding by clear and convincing evidence that the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to self or others, the state’s police power justifies the minimal restriction on the right to refuse treatment inherent in an order that the patient comply as directed. Moreover, the state’s interest in the exercise of its police power is greater here than in Rivers, where the inpatient’s confinement in a hospital under close supervision reduced the risk of danger he posed to the community.

In addition, the state’s parens patriae interest in providing care to its citizens who are unable to care for themselves because of mental illness is properly invoked since an AOT order requires findings that the patient is unlikely to survive safely in the community without supervision; the patient has a history of lack of compliance with treatment that has either necessitated hospitalization or resulted in acts of serious violent behavior or threats of, or attempts at, serious physical harm; the patient is unlikely to voluntarily participate in the recommended treatment plan; the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others; and it is likely that the patient will benefit from assisted outpatient treatment.

In requiring that these findings be made by clear and convincing evidence and that the assisted outpatient treatment be the least restrictive alternative, the statute’s procedure for obtaining an AOT order provides all the process that is constitutionally due.

Nor does Mental Hygiene Law § 9.60 violate equal protection by failing to require a finding of incapacity before a patient can be subjected to an AOT order. Although persons subject to guardianship proceedings and involuntarily committed psychiatric patients must be found incapacitated before they can be forcibly medicated against their will, a court-ordered assisted outpatient treatment plan simply does not authorize forcible medical treatment—nor, of course, could it, absent incapacity. The statute thus in no way treats similarly situated persons differently (see City of Cleburne, Tex. v Cleburne Living Ctr., 473 US 432, 439 [1985]).

III.

Respondent next challenges the detention provisions of Kendra’s Law, contending that the failure of the statute to provide for notice and a hearing prior to the temporary removal of a noncompliant patient to a hospital violates due process.

Under Mental Hygiene Law § 9.60 (n), when an assisted outpatient who persists in the failure or refusal to comply with court-ordered treatment may, in the clinical judgment of a physician, be in need of involuntary hospitalization, the physician may seek the removal of the patient to a hospital for an examination to determine whether hospitalization is indeed necessary. If the assisted outpatient refuses to take medication—or refuses to take or fails a blood test, urinalysis, or alcohol or drug test—as required by the court order, the physician may consider this refusal or failure when determining whether such an examination is needed. A noncompliant patient thus removed under Kendra’s Law may then be retained in the hospital for observation, care and treatment, and further examination, for up to 72 hours, in order to permit a physician to determine whether the patient has a mental illness and is in need of involuntary hospital care and treatment pursuant to the provisions of the Mental Hygiene Law. A patient who at any time during the 72-hour period is determined not to meet the standards for involuntary admission and retention and does not consent to remain must be immediately released.

When the state seeks to deprive an individual of liberty, it must provide effective procedures to guard against an erroneous deprivation. A determination of the process that is constitutionally due thus requires a weighing of three factors: the private interest affected; the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and the government’s interest (see Mathews v Eldridge, 424 US 319, 335 [1976]).

While we disagree with the Appellate Division’s determination that the involuntary detention of a psychiatric patient for up to 72 hours does not constitute a substantial deprivation of liberty, we nevertheless conclude that the patient’s significant liberty interest is outweighed by the other Mathews factors. In the context of the entire statutory scheme, the risk of an erroneous deprivation pending the limited period during which an examination must be undertaken to determine whether a persistently noncompliant patient is in need of involuntary care and treatment is minimal. For before a court order authorizing an AOT plan is issued, there must already have been judicial findings by clear and convincing evidence that the patient is unlikely to survive safely in the community without supervision; has a history of noncompliance resulting in violence or necessitating hospitalization; and is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm. Nor is a court better situated than a physician to determine whether the grounds for detention—persistent noncompliance and the need for involuntary commitment—have been met. A preremoval hearing would therefore not reduce the risk of erroneous deprivation.

In addition, the state’s interest in immediately removing from the streets noncompliant patients previously found to be, as a result of their noncompliance, at risk of a relapse or deterioration likely to result in serious harm to themselves or others is quite strong. The state has a further interest in warding off the longer periods of hospitalization that, as the Legislature has found, tend to accompany relapse or deterioration. The statute advances this goal by enabling a physician to personally examine the patient at a hospital so as to determine whether the patient, through noncompliance, has created a need for inpatient treatment that the patient cannot himself or herself comprehend. A preremoval judicial hearing would significantly reduce the speed with which the patient can be evaluated and then receive the care and treatment which physicians have reason to believe that the patient may need. Indeed, absent removal, there is no mechanism by which to force a noncompliant patient to attend a judicial hearing in the first place.

Respondent contends that a comprehensive psychiatric examination can be easily performed in less than 72 hours after removal. But since the temporary detention permitted by the statute comports with due process, it is not for us to determine whether the 72-hour limit is ideal, or necessary, or wise. As long as the time period satisfies constitutional requirements—which it does—it is not for this Court to substitute its judgment for that of the Legislature.

Finally, we find no violation of the constitutional prohibition against unreasonable searches and seizures (see US Const 4th Amend; NY Const, art I, § 12) in the statute’s failure to specify that a physician must have probable cause or reasonable grounds to believe that a noncompliant assisted outpatient is in need of involuntary hospitalization before he or she may seek the patient’s removal. It is readily apparent that the requirement that a determination that a patient may need care and treatment must be reached in the “clinical judgment” of a physician necessarily contemplates that the determination will be based on the physician’s reasonable belief that the patient is in need of such care.

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

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith taking no part.

Order affirmed, without costs.

      . Under Mental Hygiene Law § 9.27, a person may be involuntarily admitted to a hospital upon the certification of two physicians when he or she is in need of involuntary care and treatment, defined as having “a mental illness for which care and treatment as a patient in a hospital is essential to such person’s welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment” (Mental Hygiene Law § 9.01). Under Mental Hygiene Law §§ 9.39 and 9.40, persons in need of immediate observation, care and treatment may be admitted to a hospital on an emergency basis when they have a mental illness which is likely to result in serious harm to themselves or others, defined as a “substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or ... a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm” (Mental Hygiene Law § 9.39 [a] [1], [2]).

      . Inasmuch as the statute does not—and could not, absent a showing of incapacity—authorize the forcible administration of psychotropic drugs, any AOT order purporting to contain such a direction would exceed the authority of the law. Respondent’s treatment plan contained no such illegal direction. Any persistent refusal to comply with the directive that he voluntarily submit to the administration of Haldol would not have resulted in his being forcibly medicated. Rather, the sole consequence would have been that a physician might then have determined that respondent may have been in need of involuntary hospitalization. In that event, respondent could have been temporarily removed to a hospital for examination (see Mental Hygiene Law § 9.60 [n]).


source: Caselaw Access Project

author: CIPARICK, J.

license: Public Domain

text:
    [806 NE2d 491, 774 NYS2d 483]
    In the Matter of Alijah C. and Others, Alleged to be Abused and/or Neglected Children. Chemung County Department of Social Services, Respondent; Anita C., Respondent. Andrew M. Rothstein, as Law Guardian, Appellant.
    Argued January 6, 2004;
    decided February 19, 2004

      POINTS OF COUNSEL

      Andrew M. Rothstein, Elmira, Law Guardian.

    The death of a child due to abuse or neglect should not terminate a Family Court Act article 10 proceeding regarding such child. (Matter of Stephanie WW., 213 AD2d 818; Matter of Umer K., 257 AD2d 195; Matter of Lambert, 119 Misc 2d 326.)

      Adam M. Gee, Elmira, for Chemung County Department of Social Services, respondent.
    I. The severe abuse petition relating to a deceased child was improperly dismissed. (Matter of Stephanie WW., 213 AD2d 818; Matter of Christopher W., 299 AD2d 268; Matter of Anthony S., 280 AD2d 302; Matter of Child Welfare Admin. [Tia C.] v Marsha C., 225 AD2d 766; Matter of Baby Girl W., 245 AD2d 830.) II. The decision of the court below dismissing the severe abuse petition involving a deceased child should be reversed.

      John H. Van Wert, Elmira, for Anita C., respondent.
    The Family Court does not have authority to exercise jurisdiction over a deceased subject child in a Family Court Act article 10 abuse proceeding. (Matter of Lambert, 119 Misc 2d 326; Matter of Stephanie WW., 213 AD2d 818.)
   OPINION OF THE COURT

CIPARICK, J.

On June 2, 2001, respondent mother left six-month-old Antonio unattended in the bathtub while she went outdoors to look for her two other children, six-year-old Alijah and two-year-old Alonzo. She left Antonio alone in a floating foam bath seat in 8 to 10 inches of water. At the time, a friend was visiting and sitting in the living room, adjacent to the bathroom. However, mother did not seek her friend’s assistance in supervising Antonio while she looked for her other children. On her return—by mother’s account, three minutes later—she found Antonio submerged in the water and unconscious. Mother called 911, and the child was transported to the hospital. The child died four days later from severe brain damage caused by lack of oxygen due to the drowning.

Thereafter, petitioner Department of Social Services (DSS) filed a petition against mother pursuant to Family Court Act article 10, alleging that she committed acts of “abuse” and “severe abuse” against Antonio and that she derivatively neglected her other children, Alijah and Alonzo. Mother consented to a finding of neglect as to each of the surviving children and moved to dismiss the abuse petition filed on behalf of Antonio—the deceased child. The Law Guardian and DSS opposed the motion.

Family Court granted mother’s motion to dismiss the petition as to Antonio, holding that “where an abuse petition is filed on behalf of a deceased child, the purpose of filing the petition can no longer be served and therefore such a petition must be dismissed as moot.” Thereafter, a dispositional order was entered adjudicating the surviving children neglected and releasing the children to the custody of their maternal grandmother. The Law Guardian appealed Family Court’s order dismissing the abuse petition as to the deceased child.

The Appellate Division affirmed (302 AD2d 838 [2003]), relying on Matter of Stephanie WW. (213 AD2d 818 [3d Dept 1995]), which held that a neglect petition cannot be brought on behalf of a deceased child because the subject child is no longer in need of the protections of article 10 of the Family Court Act. Finding no distinction between neglect and abuse petitions, in this context, the Appellate Division concluded that a deceased child may not be the subject of an abuse petition. We disagree and now reverse.

Discussion

The Law Guardian and DSS contend that the dismissal of the abuse petition as to Antonio harms the surviving children because they will not have the protection afforded by Social Services Law § 384-b. Under section 384-b, mother’s rights may be terminated based on “repeated abuse” if she abuses one of the surviving children within five years after Antonio’s death. By contrast, mother argues that Family Court is without jurisdiction to entertain an abuse petition brought on behalf of a deceased child because the purpose of Family Court Act article 10—“to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being” (Family Ct Act § 1011)—can no longer be served where an abuse petition names a deceased child.

We reject mother’s reading of the statute as contrary to the language and intent of the Legislature in dealing with the abuse of children. First, section 1012 (e) of the Family Court Act defines an abused child as “a child less than eighteen years of age whose parent . . . (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death” (Family Ct Act § 1012 [e] [i] [emphasis added]). The language of the statute plainly contemplates that abuse petitions will be brought on behalf of deceased children as it is satisfied where the person responsible for the subject child either causes the death or creates a substantial risk of death of the child (see Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, at 308).

Further, the statute provides that, in addition to making a finding of abuse, a court “may enter a finding of severe abuse or repeated abuse” as defined in Social Services Law § 384-b (8) (a) and (b), based on clear and convincing evidence, which shall be admissible in a proceeding to terminate parental rights (Family Ct Act § 1051 [e]; see also Family Ct Act § 1012 Q] [defining aggravated circumstances as where a child has been severely or repeatedly abused]). Thus, pursuant to the statutory scheme, a child shall be adjudicated severely abused if:

“the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law” (Social Services Law § 384-b [8] [a] [i]; see also Family Ct Act § 1051 [ej).

Serious physical injury includes “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement” of the child (Penal Law § 10.00 [10] [emphasis added]). In drafting these sections, the Legislature clearly demonstrated an intent to bring deceased children within the ambit of the Family Court Act in order to protect the health and safety of children whose siblings have died at the hands of a parent or caretaker.

The Legislature’s express incorporation of the Social Services Law definition of “repeatedly abused” into the Family Court Act further reflects its intent to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramount in termination of parental rights proceedings as to surviving children {see Family Ct Act § 1051 [e]). Social Services Law § 384-b (4) (e) provides that parental rights shall be terminated upon a showing that the parent “repeatedly abused” the subject child. The statute defines a child as “ ‘repeatedly abused’ ” where, as pertinent here:

“(i) the child has been found to be an abused child . . . as a result of such parent’s acts . . . and
“(ii) (A) the child or another child for whose care such parent is or has been legally responsible has been previously found, within the five years immediately preceding the initiation of the proceeding in which such abuse is found, to be an abused child, as defined in . . . the family court act, as a result of such parent’s acts” (Social Services Law § 384-b [8] [b] [i], [ii] [A] [emphasis added]).

We thus reject the contention that a deceased child cannot be the subject of an abuse petition. Clearly, siblings of a child killed by abuse are within the class of children the Legislature sought to protect in enacting Social Services Law § 384-b, enhancing the protective purposes of article 10 of the Family Court Act. As one commentator has stated, “[i]t is logical and appropriate to assume that acts of abuse or neglect committed against one child in the household jeopardize all children similarly situated” (Sobie, 2003 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, 2004 Pocket Part, at 98).

As we recently stated in Matter of Marino S. (100 NY2d 361, 375 [2003]), that “[i]t would be unthinkable to interpret the Social Services Law so that a derivative finding [of abuse] can be made when a parent assaults a sibling, but not when the parent rapes a sibling or seriously injures her under circumstances evincing a depraved indifference to her life,” it would similarly be unthinkable to read article 10 of the Family Court Act so that it triggers termination of parental rights proceedings to protect surviving children only where a parent inflicts serious physical injury short of death on another child, but not where abuse is so severe that the child dies. Moreover, if the petition is dismissed, there may be no judicial determination as to the facts and circumstances surrounding the child’s death. While evidence of the event may be relevant in some future proceeding, any subsequent inquiry will be bereft of findings that should be a matter of record rather than left to be reconstructed. The petition alleging that mother committed acts of “abuse” and “severe abuse” against Antonio causing his death should thus be allowed to proceed to ensure the safety and welfare of the surviving children.

Accordingly, the order of the Appellate Division should be reversed, without costs, and mother’s motion to dismiss the abuse petition as to the deceased child denied.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith taking no part.

Order reversed, etc.

      . Compare the definition of abuse with that of neglect, which requires that a child’s “physical, mental or emotional condition” be impaired or be “in imminent danger of becoming impaired” or that a child be abandoned (see Family Ct Act § 1012 [f] [i], [ii]). We underscore that the issue before us is limited to abuse. We do not consider whether a deceased child can be the subject of a neglect petition (see Matter of Stephanie WW., 213 AD2d 818 [3d Dept 1995]).

      . As to quantum of proof, see Family Court Act § 1046 (b) (i) and (ii), providing that a determination that a child is abused must be based on a preponderance of the evidence and, by contrast, a determination of severe or repeated abuse is to be supported by clear and convincing evidence.

      . Our discussion is not limited to siblings, as presented in this case, but includes half-siblings and children under the care of a person who has abused another child for .whom such person has been “legally responsible” (see Family Ct Act § 1012 [g] [defining “Person legally responsible” to include “the child’s custodian, guardian, (or) any other person responsible for the child’s care at the relevant time”]; see also People v Carroll, 93 NY2d 564, 569 [1999]).

      . Chapter 7 (§ 9) of the Laws of 1999 amended Social Services Law § 384-b to include the following statement of legislative intent: “The legislature recognizes that the health and safety of children is of paramount importance” (Social Services Law § 384-b [1] [a]).


author: Graffeo, J.

text:
    [806 NE2d 488, 774 NYS2d 480]
    Banco Popular North America, Respondent, v Victory Taxi Management, Inc., Defendant, and Jafa Albaz, Appellant.
    Argued January 8, 2004;
    decided February 19, 2004

      POINTS OF COUNSEL

      Stephen David Fink, Forest Hills, for appellant.
    The motion for summary judgment in lieu of complaint should be denied. (Coleman v Norton, 289 AD2d 130; Bankers Trust Co. v Fassler, 49 AD2d 855; Spilky v Bernard H. La Lone, Jr., P.C., 227 AD2d 741; Poughkeepsie Sav. Bank v Tyson, 170 AD2d 818; Pasqualini v Tedesco, 248 AD2d 604; Seoulbank, N.Y. Agency v D & J Export & Import Corp., 270 AD2d 193; CI Sys. [Israel] v Melamed, 290 AD2d 266; Krill v Aziz, 186 AD2d 81.)

      Sankel, Skurman & McCartin, LLP New York City {Claudio Dessberg of counsel), for respondent.
    Summary judgment is warranted as against appellant Jafa Albaz. (Cross v. Cross, 112 AD2d 62; Tittman v Rappoport, 287 AD2d 709; Spilky v Bernard H. La Lone, Jr., P.C., 227 AD2d 741; Bankers Trust Co. v Fassler, 49 AD2d 855; Machinery Funding Corp. v Loman Enters., 91 AD2d 528; Krill v Aziz, 186 AD2d 81; Krupp v Aetna Life & Cas. Co., 103 AD2d 252; Consolidated Edison Co. v Jet Asphalt Corp., 132 AD2d 296; Gala Trading v Adrienne, Inc., 174 AD2d 478; Sprung v Jaffe, 3 NY2d 539.)
   OPINION OF THE COURT

Graffeo, J.

At various times over the course of a year, defendant Victory Taxi Management, Inc. purchased 14 taxicabs with financing provided by plaintiff Banco Popular North America. Victory subsequently discontinued business operations and defaulted on the loans, owing Banco Popular more than $160,000 under the terms of its vehicle retail installment contracts. After Banco Popular demanded payment in full, the parties agreed that Victory would sell 10 of its vehicles to offset the debt. The proceeds of these sales—$25,000—was paid to Banco Popular to reduce Victory’s outstanding principal loan balance.

Banco Popular then initiated this action by filing a motion for summary judgment in lieu of a complaint {see CPLR 3213) against Victory and defendant Jafa Albaz, seeking to recover the remaining monies owed. The bank asserted that Albaz had cosigned. 13 of the 14 installment contracts and was therefore personally liable upon the default. Albaz submitted an affidavit in opposition to the motion in which she claimed that her signature on the bank documents had been forged. Albaz also relied upon a report from a purported handwriting expert who opined that “Albaz can not be identified as the writer of the questioned signatures” after comparing facsimile copies of the installment contracts with numerous documents bearing Albaz’s signature (the comparison documents were not included in any submissions to the trial court).

Supreme Court granted Banco Popular’s motion for summary judgment against both defendants, concluding that neither Albaz’s affidavit nor the report of the handwriting examiner— which was unsworn and inadmissible—was sufficient to create an issue of fact regarding the authenticity of the signatures. Albaz moved to reargue and renew her opposition to summary judgment after her expert examined the original loan documents and prepared a sworn affidavit. Supreme Court rejected her argument, noting that there was no change in the document examiner’s inconclusive opinion, which remained inadequate to raise a triable issue of fact. The Appellate Division affirmed the award of summary judgment to Banco Popular, and having granted leave to appeal, we now also affirm.

CPLR 3213, which allows actions based upon an instrument for the payment of money only to be commenced with a motion for summary judgment rather than a complaint, “provide [s] a speedy and effective means” for resolving “presumptively meritorious” claims (Interman Indus. Prods, v R.S.M. Electron Power, 37 NY2d 151, 154 [1975]; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:l). A party utilizing this accelerated judgment procedure prevails “if, upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment” for the plaintiff (CPLR 3212 [b]). A defendant can defeat a CPLR 3213 motion by offering evidentiary proof sufficient to raise a triable issue of fact (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]). The issue here is whether Albaz presented evidence sufficient to establish a genuine issue of fact regarding the authenticity of her signatures on the retail installment contracts.

“[A]verments merely stating conclusions, of fact or of law, are insufficient” to “defeat summary judgment” (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 290; see Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]). Something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature. Here, there is an absence of factual assertions supporting a claim of forgery and Albaz has not demonstrated that her prelitigation conduct was consistent with a denial of genuineness. Hence, Albaz’s affidavit was alone inadequate to raise an issue of fact necessitating a trial.

Although an expert’s opinion is not required to establish a triable issue of fact regarding a forgery allegation, where an expert is used to counter the moving party’s prima facie proof, the expert opinion must be in admissible form and state with reasonable professional certainty that the signature at issue is not authentic. In this case, Albaz’s handwriting examiner’s unsworn letter report was not “evidentiary proof in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Grasso v Angerami, 79 NY2d 813, 814 [1991]). Furthermore, the examiner’s subsequent affidavit submitted on reargument was also insufficient to avoid summary judgment in plaintiff’s favor because the examiner’s opinion was the equivalent of stating that he was not able to determine whether Albaz was the signatory on the documents. Albaz’s submissions therefore did not overcome Banco Popular’s prima facie showing of entitlement to judgment as a matter of law.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Read concur; Judge R.S. Smith taking no part.

Order affirmed, with costs.


author: Rosenblatt, J.

text:
    [806 NE2d 970, 774 NYS2d 857]
    Longwood Central School District, Appellant, v Springs Union Free School District, Respondent.
    Argued January 6, 2004;
    decided February 17, 2004

      POINTS OF COUNSEL

      Ingerman Smith, L.L.P., Northport (Neil M. Block of counsel), for appellant.
    I. The term “resided” in Education Law § 3202 (4) (a) should be interpreted as permanent residence or domicile. (Catlin v Sobol, 155 AD2d 24, 77 NY2d 552; State of New York v Collins, 78 AD2d 295; Matter of Seitelman v Lavine, 36 NY2d 165; Commercial Mut. Ins. Co. v Wagschall, 256 AD2d 300; Unanue v Unanue, 141 AD2d 31; Daley v Daley, 257 AD2d 593; Three Vil. Cent. School Dist. v Brentwood Union Free School Dist., 167 AD2d 385, 77 NY2d 806; Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283.) II. The Appellate Division erred in concluding the school district in which the shelter is located is responsible for the subject children’s tuition, since they could have attended the schools in which the shelter is located. (Matter of Delgado v Freeport Pub. School Dist., 131 Misc 2d 102; Vaughn v Board of Educ., 64 Misc 2d 60.) III. The Appellate Division’s interpretation of the term “resided” in Education Law § 3202 (4) (a) as meaning mere physical presence creates an absurd result. (Board of Educ., Commack Union Free School Dist. v Port Jefferson Union Free School Dist., 134 AD2d 315; Matter of Newcomb, 192 NY 238.)

      Costa & Cuthbertson, LLP, Melville (Mark A. Cuthbertson and Thomas L. Costa of counsel), for respondent.
    I. The Appellate Division correctly held that the word “resided” in Education Law § 3202 (4) (a) includes residence of a temporary nature. (Board of Educ., Commack Union Free School Dist. v Port Jefferson Union Free School Dist., 134 AD2d 315; Matter of Delgado v Freeport Pub. School Dist., 131 Misc 2d 102; Vaughn v Board of Educ., 64 Misc 2d 60; Matter of Newcomb, 192 NY 238; Thompson v Mundheim, 180 Misc 1002, 266 App Div 1001; People v Bolden, 81 NY2d 146; Matter of Hosley v Curry, 85 NY2d 447; Laufer v Hauge, 140 AD2d 671; Matter of Larkin v Herbert, 185 AD2d 607; Antone v General Motors Corp., 64 NY2d 20.) II. Longwood’s reliance on Catlin v Sobol (77 NY2d 552 [1991]), Opinions of the Commissioner of Education and the presumptive validity of the Department of Social Services certifications is misplaced. (Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283; Three Vil. Cent. School Dist. v Brentwood Union Free School Dist., 167 AD2d 385, 77 NY2d 806.) III. Affirmance of the Appellate Division’s decision will not lead to “absurd” results. (Catlin v Sobol, 77 NY2d 552; Matter of Delgado v Freeport Pub. School Dist., 131 Misc 2d 102; Vaughn v Board of Educ., 64 Misc 2d 60.) IV Even if this Court adopts a domicile standard for Education Law § 3202 (4) (a), Springs Union Free School District is still not liable. (Matter of Brunner, 41 NY2d 917; Matter of Newcomb, 192 NY 238; Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36; Matter of Daly, 178 Misc 943; District of Columbia v Murphy, 314 US 441; Unanue v Unanue, 141 AD2d 31; Orozco v Sobol, 674 F Supp 125.)
   OPINION OF THE COURT

Rosenblatt, J.

On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law § 3202 (4) (a), and the outcome turns on where the children “resided” within the meaning of the statute. Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as “residence,” and therefore conclude that the Springs Union Free School District—the children’s last permanent residence—is responsible for their instructional costs.

The mother of the four children for whom reimbursement is sought rented a home within the Springs school district beginning in December 1991, where the family lived until they were evicted in July 1993. Over the next couple of months, the children moved to various temporary housing arrangements at motels or stayed with relatives. For part of this time, the mother was incarcerated for a parole violation. In August 1993, the family moved into Shelter Plus, a homeless shelter located in Lake Grove. While there, the children did not attend school. In September and October 1993, the Suffolk County Department of Social Services placed all four of the children in foster care, and the children attended school in the Longwood district. Each child’s DSS-2999 form (which notifies a school district of a foster child placed within its district) listed the “district of origin” as Springs.

Longwood filed a notice of claim with Springs for the cost of the children’s education. Upon nonpayment, Longwood commenced three actions seeking tuition reimbursement for the 1994-1995, 1995-1996 and 1996-1997 school years. Both parties moved for summary judgment. Supreme Court consolidated the actions and granted Longwood’s motion. Interpreting the term “resided” in Education Law § 3202 (4) (a) to include an intent to remain permanently, the court determined that the mother’s last permanent home was in the Springs district and therefore held it liable for the education costs. Springs appealed. The Appellate Division reversed, concluding, that the mother’s temporary residence at Shelter Plus obligated the district within which the shelter was located to pay for the education of her children. Longwood appealed, and we now reverse.

Education Law § 3202 (4) (a) states that

“the cost of instruction of pupils placed in family homes at board by a social services district or a state department or agency shall be borne by the school district in which each such pupil resided at the time the social services district or state department or agency assumed responsibility for the placement, support and maintenance of such pupil” (emphasis added).

Springs interprets “resided” to mean mere physical location, and thus views the family’s transient stay at Shelter Plus as absolving it from any obligation to cover the cost of the children’s education. Conversely, Longwood argues that “resided” must include an intent to remain in a place permanently. Under Longwood’s view, a brief stay at a shelter does not amount to residence, and that the family’s last permanent residence is what counts. We agree with Longwood and conclude that the term “resided” in Education Law § 3202 (4) (a) requires an intent to remain in a place permanently.

Within the general scheme of Education Law § 3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908]). An existing domicile is assumed to continue until a new one is acquired, and Education Law § 3202 creates a rebuttable presumption that children share the domicile of their parent (see Catlin v Sobol, 77 NY2d 552, 560 [1991]). Section 3202, which “sets out the framework for determining when and under what circumstances a school district is obligated to provide free education” (id. at 559), is designed to allocate costs sensibly between school districts and to avert burdening them with the costs of educating nonresident children.

Section 3202 (1) begins with the promise of free education, by which a student is “entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.” It is axiomatic under this provision that “residence is established by one’s physical presence as an inhabitant within the district, combined with an intent to remain” (Appeal of Stokes, 32 Ed Dept Rep 93, 95 [Decision No. 12,769] [1992]; see also Appeal of Daniels, 37 Ed Dept Rep 537 [Decision No. 13,926] [1998]; Appeal of Varghese, 34 Ed Dept Rep 455 [Decision No. 13,380] [1995]; Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38 [Decision No. 12,561] [1991]). Thus, every school district must “provide tuition-free education only to students whose parents or legal guardians reside within the district” (Stokes, 32 Ed Dept Rep at 94). Accordingly, while each child is guaranteed a free education, the intent-to-remain element in “resides” provides a limit on which pupils may receive a free education from a particular school district.

This Court adopted a similar interpretation of residence under Education Law § 3202 (4) (b), which provides that children cared for in free family homes or family homes at board are deemed residents of the district where the home is located only if the home is their “actual and only residence.” Recognizing that the domicile of a child is assumed to be the domicile of the parent, we held that “actual and only residence” meant “permanent domicile,” such that a showing of a surrender of parental control is required in order to impose the cost of education on the district in which the family home is located (see Catlin, 77 NY2d at 560).

The histoiy of Education Law § 3202 (4) (a) reveals a theme similar to that of section 3202 (1) and (4) (b)—to distribute fairly the costs of education among school districts. Section 3202 (4) (a) was designed to “relieve school districts of the obligation which exists in certain cases ... to bear the financial burden of educating nonresident children” (State Ed Dept Mem, Bill Jacket, L 1973, ch 867, at 6; see also Matter of Jeter v Ellen-ville Cent. School Dist., 41 NY2d 283, 285 [1977]). This “charge-back” solution provided “continuity of responsibility within the educational system” for children who could not be placed within their “original communities” (State Dept of Mental Hygiene Mem, L 1973, ch 867, at 12, 13). Section 3202 (4) (a)’s legislative history also recognized that the enactment would facilitate foster care placement because the costs of education would not shift based on the placement of a child into a foster home {see Budget Report, Bill Jacket, L 1973, ch 867, at 17).

The Department of Education has also interpreted “resided” in the context of Education Law § 3202 (4) (a) to mean “physical presence as an inhabitant of the district combined with an intent to remain” (Appeal of Haldane Cent. School Dist., 32 Ed Dept Rep 156, 159 [Decision No. 12,790] [1992]). In Haldane, the children lived with their mother in a truck on a campground in the Pine Bush School District before DSS assumed custody. Haldane, the school district which the children attended while in foster care, sought to charge Pine Bush for the tuition costs. In dismissing the appeal, the Commissioner concluded that “there is no indication whatsoever that the family intended to establish a residence at the [Pine Bush] campground” (id.). The Commissioner reasoned that “[s]ince a residence is not lost until another residence is established through both intent and action expressing such intent . . . petitioner needs to establish, with the assistance of DSS, the children’s last permanent residence before they were found at the campground” in order to ascertain which school district would be responsible for the children’s tuition costs (id.).

Here, when the Department of Social Services assumed responsibility for their care, the children’s residence, as we have defined it, was in the Springs district. Even after eviction, the children are presumed to have the same residence until a new residence—a physical location plus an intent to remain—is established. The series of temporary stayovers that followed the eviction, including the time at Shelter Plus, did not rebut the presumption that Springs was their residence within the meaning of section 3202 (4) (a). Thus, we also reject Springs’s alternative argument that the mother was domiciled at Shelter Plus.

Viewing residence as physical presence plus an intent to remain also generates predictability and avoids arbitrariness. A child’s physical presence in a district for a very short time before placement in foster care would otherwise obligate that district to cover the costs of education for the months or years the child remains in foster care. Moreover, this outcome avoids penalizing communities that are hospitable to homeless shelters. If, for purposes of Education Law § 3202 (4) (a), “residence” would result from a brief stay at a shelter, communities that offer shelters would have to bear the cost of educating nondomiciliary children with whom they had no other ties.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and Read concur; Judge R.S. Smith taking no part.

Order reversed, etc.


author: Read, J. Ciparick, J.

text:
    [807 NE2d 259, 775 NYS2d 210]
    The People of the State of New York, Respondent, v Christopher Slavin, Appellant.
    Argued January 8, 2004;
    decided February 17, 2004

      POINTS OF COUNSEL

      Robert J. Del Col, Huntington, David Besso and. Stephen Preziosi for appellant.
    I. Can the People obtain, pursuant to CPL 240.40, and thereafter admit evidence of tattoos, not relevant to establish physical appearance, physical condition or identity, but rather for their “testimonial value” and in a “communicative context”? (Matter of Abe A., 56 NY2d 288; People v Herr, 203 AD2d 927.) II. Does the issuance of an order that permits the gathering of corporeal evidence only relevant for its testimonial value and insights into the purported “subjective thought process” of an appellant violate the Fifth Amendment protection against self-incrimination? (Saccente v Toterhi, 35 AD2d 692; People v Alpern, 217 AD2d 853; People v Baez, 131 AD2d 687; Schmerber v California, 384 US 757; People v Hager, 69 NY2d 141; Gilbert v California, 388 US 263; Counselman v Hitchcock, 142 US 547; People v Berg, 92 NY2d 701; People v Segal, 78 AD2d 523.) III. Should the trial court, before permitting the introduction of such inflammatory and prejudicial evidence and the testimony of an “expert on hate groups and white supremacy,” have conducted a hearing and followed the criteria set forth in People v Molineux (168 NY 264 [1901]) and People v Ventimiglia (52 NY2d 350 [1981]), or in the alternative, established its own procedural safeguard against undue prejudice? (People v Torres, 72 AD2d 754; People v Jones, 278 AD2d 246; People v Hudy, 73 NY2d 40; People v Siu Wah Tse, 91 AD2d 350; People v Hamlin, 71 NY2d 750; United States v Yarbrough, 852 F2d 1522; People v Burke, 170 AD2d 1021; People v Kocyla, 167 AD2d 938; People v Ingram, 71 NY2d 474; People v Alvino, 71 NY2d 233.) IV Did the prosecutorial misconduct that occurred, both pretrial and at trial, rise to the level necessary to dismiss the indictment or warrant a new trial for appellant? (People v Rodney, 85 NY2d 289; Pennsylvania v Muniz, 496 US 582; People v Huston, 88 NY2d 400; Schmerber v California, 384 US 757; Gilbert v California, 388 US 263; People v Pelchat, 62 NY2d 97; People v Di Falco, 44 NY2d 482; People v Darby, 75 NY2d 449; People v Sayavong, 83 NY2d 702; People v Wilkins, 68 NY2d 269.) V. The errors complained of cannot be considered harmless beyond a reasonable doubt and require either dismissal of the indictment or a new trial for appellant. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307, 444 US 890; People v Thompson, 72 NY2d 410; People v O’Doherty, 70 NY2d 479; People v Colp, 147 AD2d 964; People v Dunleavy, 41 AD2d 717; People v Potwora, 44 AD2d 207; People v Rosario, 127 AD2d 209; People v Gaimari, 176 NY 84; People v Garafolo, 44 AD2d 86.)

      Thomas J. Spota, District Attorney, Riverhead (Michael Blakey of counsel), for respondent.
    I. Arrest photographs showing appellant’s tattoos were lawfully obtained and used to prove intent and motive. (People v Rodriguez, 64 NY2d 738; R.A.V. v City of St. Paul, Minn., 505 US 377; Dawson v Delaware, 503 US 159; Wisconsin v Mitchell, 508 US 476; People v O’Sullivan, 96 Misc 2d 52; Texas v Johnson, 491 US 397; Bery v City of New York, 97 F3d 689; Yurkew v Sinclair, 495 F Supp 1248; Barclay v Florida, 463 US 939; Katz v United States, 389 US 347; People v Scott, 79 NY2d 474.) II. No prosecutorial misconduct occurred. (People v Rodney, 85 NY2d 289; People v Colavito, 87 NY2d 423; People v Brewster, 63 NY2d 419; Virag v Hynes, 54 NY2d 437; People v Avant, 33 NY2d 265; People v Oakley, 28 NY2d 309; People v Kuss, 32 NY2d 436; People v Neilson, 115 AD2d 972; People v Reimann, 266 App Div 505; People v Wood, 66 NY2d 374.) III. Guilt was proved beyond a reasonable doubt and harmless error analysis is available. (People v Contes, 60 NY2d 620; People v Cintron, 95 NY2d 329; People v Benzinger, 36 NY2d 29; People v Crimmins, 36 NY2d 230; Arizona v Fulminante, 499 US 279; People v Carmona, 82 NY2d 603; Matter of Gladys H., 235 AD2d 841; People v Perez, 160 AD2d 637, 76 NY2d 793; People v Figueroa, 158 AD2d 308; People v McCullough, 141 AD2d 856.)
   OPINION OF THE COURT

Read, J.

We are called upon to decide whether the trial court violated defendant’s Fifth Amendment privilege against self-incrimination by allowing the People to introduce photographs of upper body tattoos, taken over defendant’s objection, as evidence of motive for committing a hate crime. We conclude that defendant was not “compelled ... to be a witness against himself’ (US Const 5th Amend) within the meaning of the privilege. The tattoos were physical characteristics, not testimony forced from his mouth (see Schmerber v California, 384 US 757, 764-765 [1966]; People v Berg, 92 NY2d 701, 704 [1999]). However much the tattoos may have reflected defendant’s inner thoughts, the People did not compel him to create them in the first place (compare United States v Hubbell, 530 US 27, 35-36 [2000]).

I.

In the early morning hours of September 17, 2000, defendant and an accomplice lured two Mexican “day laborers” into a car with the false promise of work, and drove them to an abandoned building in Suffolk County on Long Island. During the drive, defendant asked the two men whether they were Mexicans. Almost immediately after arriving at the building, defendant and his accomplice launched an unprovoked and brutal attack on their two unsuspecting victims. Defendant struck both men in the head with a metal post-hole digger, while his accomplice stabbed one of them several times. The two victims, one of whom was bleeding profusely, contrived to escape their assailants by fleeing onto the Long Island Expressway. There, a passing motorist rescued them.

The extensive police investigation that followed the attack quickly focused on defendant and his accomplice. Defendant’s accomplice turned himself in about a month after the crime. Three weeks later, defendant, accompanied by counsel, surrendered at the District Attorney’s office. Counsel informed the authorities that defendant would not be making any statements, and rejected the District Attorney’s request for “voluntary exemplars.” During arrest processing, law enforcement officials—over defendant’s objections—took photographs of his various tattoos. Defendant’s two victims did not observe the tattoos during the attack.

On the back of defendant’s neck, just below his hairline, his skin was tattooed in black with the letters “A.C.A.B.” (“All Cops Are Bastards”). On defendant’s right upper arm, the letters “F.T.W” (“Fuck The World”) were tattooed in red, and the letters “NYHC” (“New York Hard Core” or “New York Hate Corps”) were tattooed in black. A tattoo on defendant’s right upper chest pictured a Nazi swastika in black, crosscut with a white fist and encircled by the Celtic cross in red and black. The tattoo on defendant’s torso above his waistline depicted a cartoonish figure with a large nose, wearing a skullcap and a coat with money protruding from a pocket. This figure was kneeling with hands raised in supplication at the approach of a skinhead with an outstretched, outsized foot. The skinhead wore “Doc Martin” boots, rolled up pants and red suspenders. Clutching an axe and a square-shaped bottle, his visage was sinister and clownlike, with a protuberant red nose.

Defendant’s upper left arm also bore several elaborate tattoos, including an American flag above the Nazi swastika below a cloud; another Celtic cross; a skinhead holding a club and restraining a leashed pit bull wearing a spiked collar; a bald eagle; two lightning bolts, the symbol for the Nazi “SS”; a skinhead wearing suspenders on a bare chest and holding a flaming torch as he stepped upon human skeletal remains; and a tank crushing human skulls as it emerged from a city on fire. The tattoos on defendant’s left forearm featured an arrow projecting from a cloud or waterbody; a Viking ship with many shields along its side; and two burly Viking figures, one of which was blowing a horn.

In securing an indictment of defendant, the People presented the arrest photographs of these tattoos to the grand jury. Arguing that his rights under the Fourth, Fifth, and Sixth Amendments had been violated, defendant moved to dismiss the indictment and, failing that, to preclude the use of the photographs at trial. The trial court rejected defendant’s motion.

In finding no Fourth Amendment violation, the trial court remarked that it was “hard for [him] to believe that this defendant had a legitimate expectation of privacy during [his arrest] processing, especially one recognized by society, a point [he] does not attempt to argue.” He also cited CPL 160.10 (3), which provides that whenever fingerprinting of an arrestee is required or allowed, “the photograph ... of the arrested person or the defendant, as the case may be, may also be taken.” As for defendant’s Sixth Amendment claim, the trial court held that arrest processing was not a “critical stage” mandating the presence of counsel.

In rejecting defendant’s Fifth Amendment claim, the trial court relied largely on Schmerber v California (384 US 757 [1966], supra). There, the Supreme Court held that the privilege against self-incrimination protects an “accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” (id. at 761). Accordingly, in Schmerber the Court concluded that the compelled withdrawal of blood from a drunk driving suspect did not violate the privilege because the “blood test evidence, although an incriminating product of compulsion, was neither [the suspect’s] testimony nor evidence relating to some communicative act or writing by the [suspect]” (id. at 765). Extrapolating from Schmerber, the trial court found that defendant’s tattoos were not testimonial evidence, but simply physical characteristics, and that the privilege does not bar the introduction of photographs resulting from the compelled exhibit of a suspect’s body.

In addition to denying defendant’s motion, the trial court also granted the People’s motion to take a second set of photographs pursuant to CPL 240.40. This provision vests a trial court with the discretion to order a defendant to provide “non-testimonial evidence,” including having to “[p]ose for photographs not involving reenactment of an event” (CPL 240.40 [2] [b] [iv]). The trial court determined that the tattoos were relevant to defendant’s motive for committing the charged hate crime of second-degree aggravated harassment. At the time, this provision made it a crime for a person “with intent to harass, annoy, threaten or alarm” to “[s]trike[ ], shove[ ], kick[ ], or otherwise subject[ ] another person to physical contact, or attempt[ ] or threaten[ ] to do the same because of the race[,] color, religion or national origin of such person” (Penal Law § 240.30 [3], as enacted by L 1982, ch 191, § l).

Before jury selection, defendant moved to preclude the introduction of the second set of photographs, reiterating his objection under the Fifth Amendment and disputing relevancy. The trial court again denied defendant’s motion.

At trial, the People introduced the photographs of defendant’s tattoos through the testimony of a friend, who identified them as depicting tattoos that he had observed on defendant’s body prior to the attack. The People also presented a witness who was qualified as an expert in bias and hate crimes. This expert testified as to the customary meaning of the letters, symbols and pictures represented in defendant’s tattoos. The trial court directed the expert not to testify that defendant belonged to or shared the views of any particular group; he also instructed the expert not to offer testimony as to what defendant may have been thinking during the attack. In allowing the expert’s testimony, the court again rejected various Fifth Amendment and relevancy arguments raised by defendant.

The jury convicted defendant of two counts of attempted second-degree murder; one count of first-degree assault and one count of second-degree assault; and two counts of second-degree aggravated harassment. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

II.

Defendant argues that the photographs were introduced to establish his motive for committing a hate crime by disclosing his subjective thoughts and beliefs on the issue of race. And that, he claims, constituted compelled “testimonial” evidence forbidden by the Fifth Amendment privilege against self-incrimination. We disagree. Although the jurors may have inferred defendant’s motive from the existence of the tattoos, the tattoos were not compelled testimony within the scope of the privilege.

As an initial matter, the privilege does not preclude a criminal defendant from being required to exhibit physical characteristics or to provide physical exemplars. Indeed, “a person can be forced to produce ‘real or physical evidence’ ” (People v Berg, 92 NY2d at 704, quoting Schmerber v California, 384 US at 764). Further, “there is a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that may be incriminating” (United States v Hubbell, 530 US at 34-35). In the latter situation, the privilege is not violated because “ ‘the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material’ ” (id. at 35 n 9, quoting Holt v United States, 218 US 245, 252-253 [1910]).

There is no doubt that defendant’s tattoos were, as the trial court concluded, “physical characteristics.” Nor is there any dispute that the People took the photographs of the tattoos over defendant’s objections. The issue thus becomes whether the privilege is implicated here because this particular “real or physical evidence” (Schmerber v California, 384 US at 764) may have also reflected defendant’s thought processes. In this regard, we consider it dispositive that there is no Fifth Amendment protection for the contents of preexisting documents. Indeed, it is a “settled proposition that a person may be required to produce specific documents [in response to a subpoena] even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege” (United States v Hubbell, 530 US at 35-36).

Thus, the privilege does not necessarily bar compelling the disclosure of evidence that a criminal defendant created voluntarily in the past, even if the evidence betrays “incriminating assertions of fact or belief’ (id. at 35; see also United States v Doe, 465 US 605, 610-611 [1984], citing Fisher v United States, 425 US 391 [1976] [privilege does not protect contents of documents created voluntarily]).

Nor, as the dissent implies, does the act-of-production doctrine come into play in this case. This doctrine derives from the distinction drawn by the Supreme Court in Fisher between the testimonial aspects of the content of evidence and its production, which “has communicative aspects of its own, wholly aside from . . . content[ ]” (Fisher v United States, 425 US at 410). The Court identified those communicative aspects of the act of production as the tacit concession that papers produced in response to a subpoena duces tecum exist; are in the defendant’s possession and control; and are those described in the subpoena. Whether a particular production of documents involves a tacit testimonial communication of these facts would “depend on the facts and circumstances of particular cases or classes thereof’ (id.). In Fisher itself, the act of production did not run afoul of the privilege because the Government already knew about the subpoenaed papers’ existence and location.

Here, the People obviously knew about defendant’s tattoos at the time of his arrest; therefore, defendant was not required to disclose the existence of his tattoos or to describe them. Simply put, defendant was not at any time compelled to “restate, repeat, or affirm the truth of the[ ] contents” of the tattoos (United States v Doe, 465 US at 612). Thus, even if requiring him to take his shirt off and pose for arrest photographs is considered analogous to the act of production of subpoenaed documents, the People were not relying on defendant’s “truthtelling” to discover the existence of his tattoos (Fisher v United States, 425 US at 411 [“Under these circumstances . . . ‘no constitutional rights are touched. The question is not of testimony but of surrender’ ”], quoting In re Harris, 221 US 274, 279 [1911]).

Nothing that occurred here implicated defendant’s privilege against self-incrimination. The People legally took two sets of photographs (initially, during arrest processing; later, by court order) of tattoos that defendant created voluntarily, long before he committed his crime. (His friend testified that defendant had acquired the most recent tattoo at least five years earlier.) The People did not force defendant to reveal his thoughts and beliefs; they presented an expert witness who testified about the customary meaning of the images depicted by defendant’s tattoos. The trial court instructed the expert not to opine as to what defendant may have been thinking during the attack.

In sum, the tattoos may have been incriminating in the sense of potentially reflecting defendant’s “subjective knowledge or thought processes” (People v Hager, 69 NY2d 141, 142 [1987]), but defendant created this evidence of his own accord, without any compulsion from the People. Defendant was therefore not “compelled . . . to be a witness against himself’ (US Const 5th Amend) within the meaning of the privilege (see United States v Hubbell, 530 US at 35-36; see also Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, Y., M.D., P.C. v Kuriansky, 69 NY2d 232, 242 [1987], cert denied 482 US 928 [1987]).

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

Ciparick, J.

(dissenting in part). Because I believe that by being forced to submit to the photographing of his tattoos, the defendant was compelled to be a witness against himself in violation of his Fifth Amendment privilege against self-incrimination, I respectfully dissent.

The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself’ (US Const 5th Amend) and encompasses testimonial or communicative evidence (see Schmerber v California, 384 US 757, 761 [1966] ). In order to be considered testimonial, “an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information” (Doe v United States, 487 US 201, 210 [1988]; see also People v Berg, 92 NY2d 701, 704 [1999]). “Evidence is ‘testimonial or communicative’ when it reveals a person’s subjective knowledge or thought processes” (People v Hager, 69 NY2d 141, 142 [1987] [citations omitted]). The privilege against self-incrimination seeks, at least in part, “to spare the accused from . . . having to share his thoughts and beliefs with the Government” (Doe, 487 US at 213).

Inasmuch as neither of defendant’s victims saw his tattoos, the tattoos were not offered for the purpose of identification, but as evidence of motive. It is certainly true that, typically, corporeal evidence falls outside the scope of the Fifth Amendment because a person’s physical characteristics are neither testimonial nor communicative. But when, in a case such as this one, corporeal evidence is offered for its testimonial value, the privilege against self-incrimination is clearly implicated. Today the Court ignores that critical distinction.

Typically, “[a] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the protection of the Fifth Amendment]” (Gilbert v California, 388 US 263, 266-267 [1967]; see also United States v Dionisio, 410 US 1, 6-7 [1973]). But when “the content of the exemplars was testimonial or communicative matter” (Gilbert, 388 US at 267), a handwriting sample will be protected. Similarly, defendant’s tattoos were offered here not as identifying characteristics, but for the message they conveyed and to prove defendant’s thoughts and state of mind at the time the crimes were committed. It was thus the meaning and content of the tattoos, established through expert testimony, and not the fact that a particularly shaped and colored marking was located on a particular part of defendant’s body, that gave this evidence its relevance. Indeed, the People do not argue otherwise.

In being forced to remove his clothing and reveal tattoos that were used as proof of his subjective beliefs, defendant was thus compelled to provide evidence of a testimonial nature. The Court recognizes the communicative quality of defendant’s tattoos (majority op at 399), but nonetheless concludes that defendant was not compelled to incriminate himself within the meaning of the Fifth Amendment, relying on a line of Supreme Court cases applicable to subpoenas for documents.

The analogy is dubious at best. Surely the forced strip search of a defendant constitutes a far greater invasion into privacy rights than a subpoena for documents. But even if I were to accept the analogy, still I would conclude that defendant’s privilege against self-incrimination was violated. In ruling otherwise, the Court has misunderstood the import of the Supreme Court’s relevant precedent.

The Court’s reference to the proposition that one may be required to disclose documents that contain incriminating evidence when the individual was not “compelled” to create those documents (see majority op at 398-399, quoting United States v Hubbell, 530 US 27, 35-36 [2000]; United States v Doe, 465 US 605, 610-611 [1984]; Fisher v United States, 425 US 391 [1976]) tells only half the story. What the Court fails to recognize is that the content of incriminating documents may nevertheless be privileged if a subpoena forces the defendant to “restate, repeat, or affirm the truth of their contents” (United States v Doe, 465 US at 612; see also Hubbell, 530 US at 36 n 18), and that the act of production of testimonial evidence can have independent testimonial or communicative significance (see Fisher, 425 US at 410), such as when, by producing the documents, “the witness would admit that the papers existed, were in his possession or control, and were authentic” (Hubbell, 530 US at 36-37 n 19 [citations omitted]). If such an admission is itself incriminating, its compulsion will violate the Fifth Amendment. The Court’s conclusion that the privilege does not bar compelling the production of evidence that a criminal defendant voluntarily created in the past (majority op at 399) thus mischaracterizes the holding of Hubbell.

Here, defendant’s tattoos were used to demonstrate his current beliefs or state of mind. Since they were offered for the purpose of proving defendant’s motive for the attacks, the tattoos were being used to show his “subjective knowledge or thought processes” (Hager, 69 NY2d at 142), and constituted testimonial evidence. Although defendant was not compelled to ink these images onto his skin, he was forced at the time of arrest to reveal his tattoos, obtained years before, which—in requiring him to impliedly affirm and adopt the message they conveyed as reflective of his current racist beliefs—compelled him to perform an act with independent testimonial significance.

I cannot agree, moreover, with the Court’s conclusion that the photographs originally taken of defendant’s tattoos upon his arrest were in any event permitted because they were obtained during normal arrest processing. The record reflects that all of defendant’s tattoos—with the exception of one on the back of his neck (the initials “A.C.A.B.,” likely meaningless to most people)—were located on areas of defendant’s body covered by his everyday clothing. “[W]hat he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (Katz v United States, 389 US 347, 351 [1967]).

Nor, despite the People’s contention, could these purported “arrest photographs” be justified as part of the routine booking procedures to which all arrestees are subject (see CPL 160.10 [3]). Typical arrest photographs consist of front and side view “mug shots” of the face, necessary for the administrative purpose of identifying those in the custody of the police. Here, defendant, over his objection, was required to remove articles of his clothing to allow authorities to photograph his naked torso. We have never held that strip searches are, without more, automatically justified by a lawful arrest or permitted as a routine part of the booking process (see People v More, 97 NY2d 209 [2002]). Nor could we (see e.g. Weber v Dell, 804 F2d 796 [2d Cir 1986], cert denied sub nom. County of Monroe v Weber, 483 US 1020 [1987]). It is neither administratively necessary nor routine for the police to take such photographs which, here, were clearly taken as part of an investigative search for evidence.

In any event, the photographs actually introduced at defendant’s trial were those secured pursuant to the CPL 240.40 order issued by County Court, not those taken at the time of his arrest. But these, too, were unlawfully obtained. The statute provides that “[u]pon motion of the prosecutor, and subject to constitutional limitation, the court . . . may order the defendant to provide non-testimonial evidence” (CPL 240.40 [2] [b]). CPL 240.40 could not authorize the photographs of defendant’s tattoos both because they were testimonial in nature, revealing his subjective thoughts, and because they violated defendant’s Fifth Amendment privilege against self-incrimination. Inasmuch as the Court concedes that defendant’s tattoos reflected his subjective knowledge or thought processes (see majority op at 400), it is hard to imagine how the Court can escape the conclusion that the testimonial photographs admitted at defendant’s trial were obtained in violation of the statute pursuant to which they were secured and therefore had to have been suppressed.

Defendant’s heinous crimes and despicable beliefs do not exempt him from the protections of the Constitution or the law. The admission at defendant’s trial of evidence of his tattoos, obtained by compulsion, to demonstrate his subjective beliefs and thought processes plainly violated his privilege against self-incrimination. Nevertheless, inasmuch as proof of defendant’s guilt of attempted murder and assault was overwhelming, the error with respect to his conviction of those felony charges was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975]). But because the proof that defendant’s actions were motivated by the ethnicity of his victims was, in the absence of evidence of his tattoos, minimal, I would reverse his conviction of aggravated harassment in the second degree.

Judges G.B. Smith, Rosenblatt and Graffeo concur with Judge Read; Judge Ciparick dissents in part and votes to modify in a separate opinion in which Chief Judge Kaye concurs; Judge R.S. Smith taking no part.

Order affirmed.

      . Penal Law § 240.30 (3) now encompasses a broader range of prohibited conduct (see L 2000, ch 107, § 3).

        . Defense counsel certainly seems to have understood the District Attorney’s request for “exemplar evidence” to have been aimed at obtaining photographs of defendant’s tattoos. How the authorities learned about defendant’s tattoos is not clear from the record before us. Only the tattoo on the back of defendant’s neck would have been plainly visible when he was wearing a long-sleeved shirt. The lead detective on the case, however, was a member of Suffolk County Police Department’s Bias Crimes Unit and so, at the very least, likely understood what this tattoo (the letters “A.C.A.B.”) signified. Further, the People had interviewed severed of defendant’s former girlfriends during their investigation of the crime.

      . Defendant is pictured wearing trousers in the photographs attached to his motion to preclude and in those photographs admitted into evidence.

      . Even if, as the dissent contends, the trial court erroneously authorized the taking of the second set of photographs, defendant suffered no prejudice as a result because neither set of photographs violated his Fifth Amendment privilege. Accordingly, the first set of photographs would have been admissible at trial. Moreover, assuming that the second set of photographs did not fit within the meaning of “non-testimonial evidence” obtainable by court order pursuant to CPL 240.40, “the admissibility of evidence in the face of the Self-Incrimination Clause does not turn on the presence or absence of’ statutory authorization (People v Berg, 92 NY2d at 706). Indeed, “if evidence is constitutionally permissible, the absence of authorization in a statute does not make it impermissible” (id.).

      . We also reject defendant’s claims under the Fourth and Sixth Amendments (see Schmerber v California, 384 US at 765-766, 771-772).

      . As the Supreme Court has often stated, “one of the several purposes served by the constitutional privilege against compelled testimonial self-incrimination is that of protecting personal privacy” (see e.g. Fisher v United States, 425 US 391, 399 [1976]).

      . The Court notes that County Court rejected defendant’s Sixth Amendment claim because “arrest processing was not a ‘critical stage’ mandating the presence of counsel” (majority op at 396). But since arrest processing does not permit compelled self-incrimination, forcing defendant to strip in an effort to gain testimonial evidence was not part of any routine booking procedure constituting a noncritical stage. In any event, a defendant only has no right to counsel at a noncritical stage in the absence of a request (see People v Shaw, 72 NY2d 1032, 1033 [1988]). Here, defendant’s retained counsel had already entered the case and informed the prosecutor that defendant would make no statements and that defendant specifically rejected the People’s request that he provide “voluntary exemplars,” including photographs of his body. After counsel left, however, defendant, over his objection, was stripped and the tattoos on his body were photographed. Testimonial evidence of defendant’s tattoos was thus obtained in violation of defendant’s actually invoked right to counsel.