The defendant1 appeals from an order of the Supreme Court, Queens County, dated June 25, 1975, which denied his motion to vacate a prior ex parte order directing that he be turned over to the District Attorney of Queens County to have his beard removed and that thereafter he be placed in a lineup to be viewed by certain witnesses to a number of robberies.
The Issue.
This appeal raises three questions: (1) May a Justice sitting in the Criminal Term of the Supreme Court in Queens County direct a person who is not named as a defendant in an accusatory instrument charging him with the commission of a crime in Queens County to turn himself over to the District Attorney of that county for the purpose of having his beard removed prior to his being placed in a lineup for possible identification by witnesses as the perpetrator of two robberies in that county? (2) May that court order him placed in a lineup prior to his arrest or to the issuance of an accusatory instrument, against him charging him with the commission of a crime in Queens County? (3) Because the defendant is
Prior Proceedings.
Prior to the filing of this appeal, the defendant’s attorney brought an article 78 proceeding in this court to prohibit the enforcement of the order here under review (Matter of Blumenfeld v Dubin, 49 AD2d 593). The respondent in that proceeding was the Justice who issued this order. This court dismissed the petition in that proceeding, saying (p 594): "As the petitioner has neither been arrested nor indicted, and as no accusatory instrument has been filed against him, the proceeding is 'essentially civil in character’ and the order of June 25, 1975 is appealable (see Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576). Therefore, prohibition to prevent the enforcement of the prior order will not lie (CPLR 7801, subd 1). In dismissing the petition, we do not reach the merits. Our disposition is without prejudice to an application by petitioner for a stay in the event that the petitioner appeals and applies for such relief.”2
The Facts.
The defendant is confined in the Bronx House of Detention in connection with an offense unrelated to the robberies in Queens County which gave rise to the order appealed from. On May 5 and 12, 1975 the defendant was identified by four persons (from photographs) as the perpetrator of the Queens County robberies. The photographs showed the defendant without a beard. On May 23, 1975, when the defendant was placed in a lineup with others who also wore beards, the persons who had identified him from the photographs were unable to identify him.
On May 30, 1975 the District Attorney of Queens County obtained an ex parte order inter alia directing the defendant to be turned over to him for the purpose of conducting a lineup and that the defendant’s beard be removed prior to his appearance in the
The Law.
In Matter of District Attorney of Kings County v Angelo G. (48 AD2d 576) this court (Martuscello, J., dissenting) held that an order of the type here under attack is appealable; that the proceeding, despite its being captioned as a criminal matter, was "essentially civil in character”3 and that a Criminal Term of the Supreme Court in Kings County had the power to compel certain respondents who were neither in custody nor defendants under an accusatory instrument to supply the Kings County District Attorney with exemplars of their handwriting in connection with his investigation of a suspected insurance fraud involving forgery as an apparent element of a larcenous scheme. Although not all of the members of this court are in accord with the decision in that case, the problem here is essentially different in scope, for it requires our consideration of whether the right not to have one’s facial hair shaved (when one is not charged with a crime) is of constitutional dimensions.
The majority in the Angelo G. case (supra)did not affirmatively pass on the question of whether the Criminal Term had the power to issue the order sought by the prosecutor, absent an arrest of the respondent. They simply rejected the District Attorney’s claim that the order was not appealable, and then went on to deal with the question of whether the order under review violated the Fourth or Fifth Amendment rights or the Fourteenth Amendment due process rights of the respondents. It ruled that there was no violation of the Fourth Amendment because there was probable cause, evinced by a factual showing to the court, for the relief sought. It found the Fifth Amendment ban on self incrimir nation inapplicable on the ground that the relief sought in no way involved the compelling of communications or testimony, but rather made the respondents the source of real or physical evidence, an action which does not violate the constitutional ban. They held that the due process requirement was satisfied because the respondents had been served with notice of the application and the supporting papers and had been given the opportunity to oppose the application and to submit any grounds of opposition to the court. It therefore affirmed the order appealed from.
Another distinction between the action sought to be taken here, the compulsory shaving of the defendant’s beard prior to his appearance in the lineup, and the requirement of provision for the furnishing of a handwriting exemplar in the Angelo G. (supra) case, is that the latter, since it involves no alteration of the physical appearance of the suspect, is like standing, assuming a stance, walking or making a particular gesture. Forcible removal of a beard, by contrast, imposes on the suspect a physical change in his appearance which denies him the right to an immediate return to the form of facial hair which he wore prior to his appearance in the lineup. This distinction has been recognized (cf. Crews v Clones, supra, p 1264).
The case of Matter of Mackell v Palermo (59 Misc 2d 760) is directly in point here. There I denied an application by the District Attorney for an order directing a suspect who was neither under arrest nor the subject of an accusatory instrument in Queens‘County to shave his beard for a police lineup
Conclusion.
If the District Attorney has probable cause sufficient to sustain an order invading the defendant’s constitutional right to determine his facial appearance, he has sufficient probable cause to have the defendant arrested or to obtain an accusatory instrument charging him with the robberies in Queens County. Any one of these courses of conduct on his part will subject the defendant to the jurisdiction of the Criminal Term (see Matter of Alphonse C. [Morgenthau], 50 AD2d 97). It will then be time enough to determine, if such an order is sought, whether there has been shown a substantial State justification for invading the defendant’s constitutional right to determine his appearance (see Crews v Cloncs, supra; Richards v Thurston, supra; Breen v Kahl, supra; Griswold v Connecticut, 381 US 479, 505). If the District Attorney is unwilling to follow any of those procedures he cannot be permitted to avail himself of the back-door device he seeks to use here.
The order appealed from should therefore be reversed and the defendant’s motion granted.
1.
We denominate the appellant as "defendant” for the purpose of convenience; in fact he is not a defendant in any proceeding in Queens County.
2.
While I personally do not agree that the proper procedure is by way of an appeal rather than by an article 78 proceeding, I am bound by that determination. If not constrained by that decision, I would hold that a direct appeal does not lie since in effect it is an intermediate appeal by a defendant in a criminal matter.
3.
The Appellate Division, First Department, citing the Angelo G. case (supra) has held to the same effect (Matter of Santangello v People, 49 AD2d 220).