I do not believe that the prosecution should obtain, ex parte, an order directing an individual to appear for a lineup or to be subjected to any proceedings involving his person. Instead, the prosecution should serve proper notice of the application on the individual, thereby providing him with the opportunity to be heard in opposition *39(cf. Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576). But I also believe that by making the application to vacate the order the appellant presented the substantive issue to the court, and that the court was accordingly enabled to proceed on the merits. The appeal is therefore properly before us.
This appeal differs from Matter of District Attorney of Kings County v Angelo G. (supra) * because the order under review requires a greater intrusion into the personal liberty of the appellant. The right to determine one’s appearance is contained, in the first instance, within the personal freedoms guaranteed by the Constitution and cannot be regulated, except by the demonstration of a compelling State interest which cannot be promoted by a less restrictive control (cf. Bishop v Colaw, 450 F2d 1069; Crews v Cloncs, 432 F2d 1259; Arnold v Carpenter, 459 F2d 939; Breen v Kahl, 419 F2d 1034, cert den 398 US 937). The question, like so many of a constitutional character, is one of degree. We must view each case in its own setting; the constitutional right of a student to order his personal appearance despite the rule of a school board cannot be equated with the right of an individual who is the subject of investigation arising out of the commission of a crime to maintain his habit of facial appearance if the reasonable demands of the investigation require otherwise.
I do not consider this general area of criminal investigation to be included within the amorphous right to privacy under the Constitution, which right has been limited to the specific situations recently defined in Matter of Schulman v New York City Health & Hosps. Corp. (38 NY2d 234). I consider it, rather, as a function of the traditional right of the individual covered by the Fourth Amendment, under which the tests of reasonableness and probable cause for the search are employed (cf. United States v Praigg, 336 F Supp 480).
We should not tolerate an attempt to disguise one’s appearance in order to escape the detection of a crime (cf. People v Strauss, 174 Misc 881). Indeed, in Smith v United States (187 F2d 192, cert den 341 US 927), a defendant was compelled to dye his hair so that his appearance would be restored to accord to that which he had presented at the time of the crime. Similarly, defendants under charges have been com*40pelled to submit to examinations and tests of the intimate parts and recesses of their bodies (see, e.g., Brent v White, 398 F2d 503, cert den 393 US 1123; Blackford v United States, 247 F2d 745; United States v Summerfield, 421 F2d 684; cf. Huguez v United States, 406 F2d 366; Henderson v United States, 390 F2d 805; see, generally, Ann 171 ALR 1144, and supplements; Ann 22 L ed 2d 909). In all of these cases, however, the defendant was charged with the commission of a specific crime in a pending criminal proceeding.
That a criminal proceeding has not been commenced by an arrest or by the filing of charges is not determinative by itself. If sufficient grounds can be shown, an individual is subject to being produced for tests or for identification procedures (United States v Harris, 453 F2d 1317, cert den 412 US 927; Matter of Fingerprinting of M.B., 125 NJ Super 115; Wise v Murphy, 275 A2d 205 [Ct of App, Dist Col]; State v Fierro, 107 Ariz 479; Commonwealth v Bumpus, 290 NE2d 167 [Sup Jud Ct, Mass]). As the perceptive opinion of Judge Nebeker points out in Wise v Murphy (supra, pp 214-216), it is the combination of the circumstances in each case which determines whether, under the Fourth Amendment, the compulsion imposed on the individual is reasonable.
The circumstances may be evaluated by recourse to these factors:
1. The seriousness of the crime under investigation. We would not permit a major intrusion of the person in a case of disorderly conduct, though we might in a case of rape, robbery or murder.
2. The degree of the intrusion reqúested. We would expect greater reason for a blood test than for a handwriting exemplar; and there are certain intrusions so brutal and excruciating that they violate the ordinary dictates of due process (cf. Rochin v California, 342 US 165).
3. The transitory effect of the intrusion. We would weigh the rather unimportant effect of a taking of a hair specimen in different terms from the more permanent effect of shaving a beard or dyeing the hair.
4. The nature of the exigency requiring the intrusion. We would require the prosecution to present sufficient grounds to support probable cause for any intrusion (Davis v Mississippi, 394 US 721, 726-727).
5. The reliability of the information sought as a result of *41the intrusion. If the information were of slight value in crime detection, the intrusion may not be warranted.
In this case, the prosecution states that the appellant has changed his appearance by growing a beard while confined under an unrelated charge; that three eyewitnesses to a robbery have supplied a description of the perpetrator conforming to the appellant; that the witnesses have identified the appellant as the perpetrator from photographs showing him without a beard; and that they were unable to identify the appellant in a lineup.
The weight of these circumstances, considered in the light of the factors suggested, leads to the following considerations:
1. The crime charged is serious, i.e., robbery.
2. The degree of intrusion is fairly high, but not as productive of unease or pain as searching the cavities of the body, or even a blood test, would require.
3. The effect of the intrusion will be neither transitory nor permanent. That is, the beard will be lost to the appellant only for the length of time necessary to regrow it.
4. The exigency requiring the intrusion is that the appellant has grown a beard since the time of the crimes under investigation, and witnesses, though identifying the appellant from his photographs, cannot make a positive identification because of the appellant’s beard.
5. Identification has been considered traditionally as a reliable form of evidence (but cf. Sobel, Eye-Witness Identification, P 13).
I am persuaded by the force of these considerations that the order should be affirmed. If the appellant is the perpetrator of the crime, he should not be able to avoid the issue by preventing an identification; and if he is not, the lineup without the beard will establish his innocence. The embarrassment to him by the shaving of the beard is temporary and the action required is neither discomforting nor painful. Under these facts, the intrusion to the person is justified by the ends of justice.
Rabin, Acting P. J., Martuscello and Christ, JJ., concur with Shapiro, J.; Hopkins, J., dissents and votes to affirm the order in an opinion.
Order of the Supreme Court, Queens County, reversed, on *42the law, without costs, motion granted, and ex parte order of the same court, dated May 30, 1975, vacated.
The order under review in that case directed the appellants to submit handwriting exemplars to the District Attorney.