(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 of*402fered 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.1 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 *403[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 *404209 [2002]).2 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 *405error 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.
. 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.