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holding that mandatory drug testing of teachers constituted an illegal search in violation of teachers' rights of personal privacy protected by N Y Const, art I, § 12
Summary of this case from People v. ScottOpinion
Argued April 29, 1987
Decided June 9, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Thomas M. Stark, J.
Robert E. Sapir for appellants. Daniel Galinson for respondent.
Norman H. Gross, Jay Worona and Mara B. Ginsberg for the New York State School Boards Association, amicus curiae. Richard K. Willard, Assistant Attorney General (Leonard Schaitman and Robert V. Zener of counsel), for United States, amicus curiae. James R. Sandner, Janis Levart Barquist, John H. Jurgens and Katherine A. Levine for New York State United Teachers, amicus curiae. Minna J. Kotkin, Steven R. Shapiro and Richard Emery for the New York Civil Liberties Union, amicus curiae.
On this appeal we are asked to consider the constitutionality of a School District policy requiring all probationary teachers to submit to urinalysis to detect potential drug abuse. The courts below found that the practice constituted an illegal search and seizure in violation of the teachers' constitutional rights. The School District appeals.
In 1982 the Patchogue-Medford School District signed a collective bargaining agreement with the Patchogue-Medford Congress of Teachers, the union representing the teachers. The agreement requires probationary teachers to submit to a full physical examination in their first year of employment and again during the final year of their probationary term when they become eligible for tenure. In 1985 there were approximately 22 teachers completing their probationary terms in the Patchogue-Medford School District. Some time prior to May of 1985 each of these teachers had completed a full physical examination conducted by a physician designated by the School District.
On May 3, 1985 the School District notified all of these probationary teachers by letter that they must submit to an additional urinalysis examination. The letter states that, "the district is requiring a urine sample for all employees eligible for tenure." The sample would be collected by the school nurse and then forwarded to a laboratory for testing. It is conceded that the sole purpose of this examination was to determine whether any of the teachers were using drugs illegally. There was no resolution by the Board of Education requiring these tests and there is no policy statement or directive from either the Board or the Superintendent relating to them. However, the teachers were informed that the Superintendent would not recommend for tenure any teacher who refused to provide the urine sample.
Prior to the date for the scheduled examination, the teachers' union commenced this proceeding to prohibit the examination claiming that it was unauthorized and constituted an unreasonable search and seizure in violation of the teachers' constitutional rights. The union sought declaratory and injunctive relief and obtained an interim stay. The School District raised several procedural objections and, on the merits, contended that the examination was authorized by the collective bargaining agreement, did not constitute a search or seizure and, in any event, was a reasonable requirement to impose on a tenure candidate.
The trial court granted the petition. The court found that the urine test was not part of the medical examination authorized by statute (Education Law § 913) and the collective bargaining agreement signed by the teachers' representative. The court further held that it constituted a search and seizure and could not constitutionally be made in the absence of reasonable suspicion. The court noted that the "District makes no attempt to justify the demand for a sample upon any ground supporting the need for such testing either as to the prospective tenured teachers as a class or to any of them individually."
The Appellate Division affirmed. The court agreed that the scheduled test was not part of the required and completed medical examination and constituted a purely investigatory search and seizure seeking evidence of illegal drug use. The court also held that probable cause was not required but that the test could not be ordered without reasonable suspicion. The court stated: "Balancing a Board of Education's interest in ensuring that its employees are fit to perform their jobs against the teachers' reasonable expectation of privacy, we hold that the reasonable suspicion standard is the appropriate basis for constitutionally compelling a public school teacher to submit to a urine test for the purposes of detecting the use of controlled substances" ( 119 A.D.2d 35, 40).
The School District, joined by the United States Attorney General as amicus curiae, urges on a number of grounds that the compulsory urine test does not violate the teachers' constitutional rights. First, it is urged that compulsory urine testing does not involve a search and seizure because it may be accomplished without invading the individual's body and all that is seized is a waste product in which the individual can have no reasonable expectation of privacy. Second, it is argued that if a search and seizure is involved, it is nevertheless reasonable to require teachers to submit to compulsory urine testing at the will of the employer because public school teachers have a diminished expectation of privacy with respect to their fitness and the State has an overriding interest in providing a drug free environment in the public schools. Finally, the School District contends that, in any event, the collective bargaining agreement signed by the teachers' representative constitutes consent or waiver of the teachers' rights with respect to a compulsory urine test.
It is not clear whether the urine test compelled here would satisfy Federal constitutional requirements. The Supreme Court has not yet decided a case involving compulsory drug testing of government employees, and the courts which have considered application of the Fourth Amendment have reached diverse conclusions. All appear to have held that such testing involves a search and seizure, but differ as to whether it is reasonable for the government to act only on reasonable suspicion with respect to a particular employee (see, e.g., Division 241 Amalgamated Tr. Union v Suscy, 538 F.2d 1264; Jones v McKenzie, 628 F. Supp. 1500; Capua v City of Plainfield, 643 F. Supp. 1507; Security Law Enforcement Employees v Carey, 737 F.2d 187, 205; Turner v Fraternal Order of Police, 500 A.2d 1005 [DC App]; cf., Allen v City of Marietta, 601 F. Supp. 482 [reasonable suspicion noted]) or whether some form of random testing of all employees in certain categories is permissible (see, e.g., McDonnell v Hunter, 809 F.2d 1302; Shoemaker v Handel, 795 F.2d 1136; Rushton v Nebraska Pub. Power Dist., 653 F. Supp. 1510 [D Neb 1987]; National Treasury Employees Union v Von Raab, 816 F.2d 170 [5th Cir]). A majority of courts appear to support the conclusions reached by the courts below in the case now before us, that urine testing compelled by the government does involve a search and seizure, and that reasonable suspicion is required (see, Miller, Mandatory Urinalysis Testing and the Privacy Rights of Subject Employees: Toward a General Rule of Legality Under the Fourth Amendment, 48 U Pitt L Rev 201 [1986]; see also, Fraternal Order of Police v City of Newark, 216 N.J. Super. 461, 524 A.2d 430; City of Palm Bay v Bauman, 475 So.2d 1322 [Fla 1985], reaching a similar conclusion under State Constitutions).
As noted, the School District disputes both of those conclusions and contends that it has a right to conduct such tests at will. The question is an important one which should be settled throughout the State and one on which resort to the Federal Constitution would not be dispositive since the practice, even if permitted by the Fourth Amendment, may not satisfy the requirements of the comparable provision of the State Constitution (NY Const, art I, § 12). The heart of the controversy under both Constitutions is whether the particular test infringes on an expectation of privacy which society considers reasonable. To the extent that this case deals with the expectation of privacy of public employees in this State, it presents a type of inquiry appropriate for resolution under the State Constitution. We therefore consider it necessary and appropriate to decide this case under both the State and Federal Constitutions.
In response to the concurring opinion it should be noted that the petition in this case refers generally to the teachers' constitutional rights without specifically relying on either the Federal or State Constitutions. If this is sufficient in the context of this case to raise the Fourth Amendment, as we all agree it is, it should serve to present State constitutional questions as well. In search and seizure cases especially, this court has traditionally rested its decisions on both State and Federal grounds when it appears that they both support the result reached (see, e.g., People v Perel, 34 N.Y.2d 462; People v Cantor, 36 N.Y.2d 106; People v Nieves, 36 N.Y.2d 396; People v Gonzalez, 39 N.Y.2d 122; People v Allende, 39 N.Y.2d 474; People v Farenga, 42 N.Y.2d 1092; Hynes v Moskowitz, 44 N.Y.2d 383; People v Boodle, 47 N.Y.2d 398; People ex rel. Piccarillo v State Bd. of Parole, 48 N.Y.2d 76; People v Calhoun, 49 N.Y.2d 398; Matter of Abe A., 56 N.Y.2d 288). As we noted in the Gonzalez case (supra, at 131): "A bad seizure under the Federal Constitution in the Federal courts is also a bad seizure under both the Federal and State Constitutions in the courts of this State." More recently we have noted that resort to the State Constitution, in addition to the Federal, is particularly apt when the result under Federal law is uncertain (People v Johnson, 66 N.Y.2d 398, 406-407).
With respect to the suggestion that our reliance on both Constitutions is somehow unfair to the litigants it should be noted that one of the briefs submitted on this appeal was completely devoted to this issue. In addition, the relief sought here is in the nature of a declaratory judgment, where the object is not to determine whether the rights of a particular litigant have been violated, but is instead intended to provide guidance to the parties so that they may conform their future conduct to the law. As indicated above, reliance on the Federal Constitution alone could not provide a complete or adequate response to that inquiry. For the reasons that follow, we conclude that the test ordered in this case does not satisfy the requirements of either the State or Federal Constitutions.
The guarantee against unreasonable searches and seizures found in both the State and Federal Constitutions (US Const 4th Amend; N Y Const, art I, § 12) is designed to protect the personal privacy and dignity of the individual against unwarranted intrusions by the State (People v Hodge, 44 N.Y.2d 553, 557; Schmerber v California, 384 U.S. 757, 767). It protects not only the individual's home and property but also one's person and bodily integrity (Matter of Abe A., 56 N.Y.2d 288, supra; Schmerber v California, supra). It is primarily aimed at limiting the scope of criminal investigations by the police, but it also places restrictions on the conduct of government officials generally, including State employers and school authorities (People v Scott D., 34 N.Y.2d 483; New Jersey v T.L.O., 469 U.S. 325; O'Connor v Ortega, 480 US ___, 94 L Ed 2d 714).
This court and the Supreme Court have recognized that a blood test ordered to further a criminal investigation constitutes a search and seizure, and therefore must satisfy a reasonableness standard (Matter of Abe A., supra; Schmerber v California, supra). A urine test compelled by a government employer to determine illegal drug use involves some different considerations but still infringes on the individual's privacy. It is unrealistic to argue, as the School District and the United States Attorney General do, that a person has no reasonable expectation of privacy with respect to urine because it is a waste product periodically eliminated from the body. Although it is a waste product, it is not generally eliminated in public or in such a way that the public or government officials can gain access to it in order to "read" its contents. That is why the School District is requiring the teachers to preserve it and deliver it for inspection. It is settled that a person can have no reasonable expectation of privacy in things which are intentionally abandoned or discarded (People v Baldwin, 25 N.Y.2d 66; Abel v United States, 362 U.S. 217). But it does not follow from this rule that a person has no privacy interests in a waste product before it is abandoned and therefore no right to dispose of it in a way which maintains privacy. If that were true, documents which individuals and businesses periodically destroy would be entitled to no constitutional protection from government scrutiny.
We also reject the School District's contention that no search is involved when a person is required to provide a urine sample because urine, unlike blood, may be obtained without invading the person's body. That is not the only privacy interest the Constitution protects. The act of discharging urine is a private, indeed intimate, one and the product may contain revealing information concerning an individual's personal life and habits for those capable of analyzing it. There is no question that requiring a person to disrobe and expose his body or body cavities, or to empty the contents of his pockets, involves a sufficient intrusion on privacy to constitute a search (People v Perel, 34 N.Y.2d 462, supra; Bell v Wolfish, 441 U.S. 520, 558). Requiring a person to urinate in the presence of a government official or agent, as is sometimes required in these cases (see, e.g., Capua v City of Plainfield, 643 F. Supp. 1507, supra; Matter of Caruso v Ward, 133 Misc.2d 544; Storms v Coughlin, 600 F. Supp. 1214), is at least as intrusive as a strip search. Even when the individual is permitted to perform the act in private, at the command and supervision of a person designated by the State, privacy interests are implicated. Ordering a person to empty his or her bladder and produce the urine in a container for inspection and analysis by public officials is no less offensive to personal dignity than requiring an individual to empty his pockets and produce a report containing the results of a urinalysis examination. In short, we conclude that the government's act of requiring a person to submit to urinalysis for drug abuse constitutes a search and seizure. The remaining question is what standard of reasonableness the State must meet before it can require an employee to submit to such a test.
Reasonableness generally requires that the State have probable cause and obtain a warrant before conducting a search and seizure (see, e.g., People v Gokey, 60 N.Y.2d 309; United States v Chadwick, 433 U.S. 1). Under certain special circumstances, however, it may be reasonable to permit the government to search without a warrant on grounds not amounting to probable cause. In such instances the court must assess the reasons for the search and the extent to which it intrudes on legitimate privacy interests to determine whether, on balance, the government's action is reasonable (People v Scott, 63 N.Y.2d 518, 525; People v John BB, 56 N.Y.2d 482, 487).
We have applied this analysis to searches of students by school officials seeking to eliminate illegal drugs from the public schools. We noted that given "the special responsibility of school teachers in the control of the school precincts and the grave threat, even lethal threat, of drug abuse among school children, the basis for finding sufficient cause for a school search will be less than that required outside the school precincts" (People v Scott D., 34 N.Y.2d 483, 488, supra). However, we held that the fact that such searches were not aimed at uncovering evidence of crime, but were only intended to preserve the school environment, did "not permit random causeless searches". (People v Scott D., supra, at 487; see also, New Jersey v T.L.O., supra, at 342, n 8 [permitting warrantless search of student on "individualized suspicion", but leaving open question as to whether this is an "essential element" of the reasonableness standard applicable to school authorities]).
Similar considerations are relevant when school authorities seek to have teachers submit to urinalysis for potential drug abuse. The School District has an interest in seeing that its teachers are fit and that drug abuse does not impair their ability to deal with the students. Teachers in this State are generally required to submit to an examination to determine their physical and mental fitness to perform their duties (Education Law § 913). They therefore have a diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers, and it is not unreasonable to require teachers to submit to further testing when school authorities have reason to suspect that they are currently unfit for teaching duties. Thus we agree with the courts below that reasonable suspicion is an appropriate standard, and that probable cause and a warrant are not required before school officials can demand that a teacher submit to a urinalysis for potential drug abuse (cf., O'Connor v Ortega, supra [plurality opinion holding government employer justified in searching employee's office when reasonable grounds for suspecting that it will yield evidence of work-related misconduct, but leaving open question as to whether individualized suspicion is an essential element of the unreasonableness standard]).
The School District concededly did not have reasonable suspicion to believe that all or any of its probationary teachers was engaged in drug abuse. It claims, however, that reasonable suspicion is not required when a public employer chooses to test all employees in a particular category for potential drug abuse. It urges that such uniform testing is analogous to police check points and an effective and expected screening process for persons engaged in highly regulated activities.
Both this court and the Supreme Court have held that the police may uniformly stop individuals at fixed checkpoints in order to identify drunk drivers (People v Scott, supra; Delaware v Prouse, 440 U.S. 648, 663). We emphasized, however, that under the applicable regulations, the police could only stop and inquire but could not give sobriety tests unless the driver's appearance and demeanor, as measured by certain specified standards, gave cause to believe that he was intoxicated. We did not suggest that the police could also uniformly require the public, even the highly regulated driving public, to step to the side of the road and provide urine samples. Thus, here we are dealing with a greater intrusion on individual privacy and dignity.
Although the District notes, as we have in the past, the prevalence of drugs in the schools among students, and more recent statistics showing a similar problem in the general work force, there is nothing in the record to indicate that this is also a problem among teachers generally or in this particular School District. If it is a problem, it has not been addressed by the Legislature, the Regents, the Commissioner of Education or, apparently, this School Board itself, which, as noted, issued no policy statement or regulation relating to the tests. It appears that the Superintendent alone identified the problem and chose a controversial solution.
The State has a legitimate interest in seeing that its employees are physically fit and that their performance is not impaired by illegal drug usage. The State also has a manifest interest in preventing crime and seeing that those who violate the law are brought to justice. There is little question that these goals would be more attainable if the State were able to search everyone periodically in an all-inclusive dragnet. If random searches of those apparently above suspicion were not effective, there would be little need to place constitutional limits upon the government's power to do so. By restricting the government to reasonable searches, the State and Federal Constitutions recognize that there comes a point at which searches intended to serve the public interest, however effective, may themselves undermine the public's interest in maintaining the privacy, dignity and security of its members. Thus random searches conducted by the State without reasonable suspicion are closely scrutinized, and generally only permitted when the privacy interests implicated are minimal, the government's interest is substantial, and safeguards are provided to insure that the individual's reasonable expectation of privacy is not subjected to unregulated discretion (People v Scott, supra). In this case those requirements have not been satisfied.
Finally, we note that requiring public employees or job applicants to submit to a physical examination to demonstrate fitness is accepted and traditional. In this case the collective bargaining agreement required the teachers to take such an examination and they did so without objection. Although the School District urges that this agreement constitutes a waiver of constitutional rights with respect to the random urine test at issue here, the courts below found as a fact that this was a new test not contemplated by the contract. We therefore have no need to consider the waiver issue.
Accordingly, the order of the Appellate Division should be affirmed.
I agree with the majority's conclusion that the school district policy, which requires all probationary teachers to submit to urinalysis to detect potential drug use prior to a decision on tenure, violates the proscription against unreasonable searches and seizures contained in the Fourth Amendment to the United States Constitution. Accordingly, I concur in the affirmance of the Appellate Division order.
I write separately, however, because the court's decision reaches beyond the scope of the issues presented on appeal. Specifically, its reliance on State constitutional grounds to invalidate mandatory testing is unwarranted. The petitioner brought this article 78 proceeding in the nature of prohibition seeking primarily to enjoin the urinalysis tests as unauthorized under the terms of the teachers' contract. The petition included a general allegation that the tests violated the teachers' "constitutional" rights but it did not allege a violation of either the Fourth Amendment to the United States Constitution or article I, section 12 of the State Constitution. Petitioner alleges in its supporting papers only that the search violated the teachers' Fourth Amendment rights. They did not argue the applicability of the State constitutional provision either in the courts below or before us. Under these circumstances, the court's reliance on the State provision is not only contrary to procedural rules — too familiar to require citation — which govern this court, but is also an inappropriate imposition on the respondents and their counsel who, after defending the Board's action against the only ground raised for some two years, now find the proceeding decided against them for reasons of which they were unaware and which they had no chance to address or refute. That amicus perfunctorily asserted on appeal petitioners' entitlement to relief under the State Constitution adds nothing to the case; amicus cannot define the issues presented to the court. The court, by raising the argument and accepting it as controlling, has functioned as an advocate for the prevailing side rather than as a court.
I also object to the decision for a more fundamental reason. The majority's opinion states that it relies on State constitutional grounds because the Supreme Court has not yet decided a case involving compulsory drug testing of public employees, because the lower courts which have considered the application of the Fourth Amendment to this issue have reached diverse conclusions, and because New York should appropriately apply its Constitution in the first instance to establish the standards applicable in this State, at the same time suggesting that the nature of a New York public employee's expectation of privacy, may somehow differ from that of other citizens (majority opn, at 65). The opinion states its perception that the issue "is an important one which should be settled throughout the State and one on which resort to the Federal Constitution would not be dispositive since the practice, even if permitted by the Fourth Amendment, may not satisfy the requirements of the comparable provision of the State Constitution (NY Const, art I, § 12)." (Id.) Accordingly, the majority concludes that the order for mandatory urinalysis does not satisfy either the State or Federal Constitution (id., at 70).
Notwithstanding the general applicability of our State Constitution when it has been asserted as grounds for relief, we are governed, in the first instance, by national standards. As Justice Brennan has observed, the Federal Bill of Rights creates "a federal floor of protection and * * * the Constitution and the Fourteenth Amendment allow diversity only above and beyond this federal constitutional floor" (Brennan, Bill of Rights and the States: The Revival of State Constitutions As Guardians of Individual Rights, 61 N.Y.U L Rev 535, 550 [1986] [emphasis in original]; see generally, Kaye, Dual Constitutionalism In Practice and Principle, 42 Rec A B City N Y 285, 304-309 [1987]). This being so, it would seem desirable, for the sake of uniformity, that we first determine that "floor" when we are asked to do so. That the issue before us has not yet been resolved by the Supreme Court and is unsettled in the lower courts is not a basis for refusing to rest our decision on the requirements of the Federal Constitution, as we perceive them (see, People v Payton, 45 N.Y.2d 300, 312). Nor does the unsettled status of the Federal law alone permit us to invoke the State Constitution so that we may preempt the Supreme Court and avoid its upsetting our interpretation of the Federal Constitution.
The rule of "independent State grounds" which controls the Supreme Court's jurisdiction to review is stated in Michigan v Long ( 463 U.S. 1032, 1041): "If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision" (emphasis added). This concurrence makes explicit, of course, that which appears in doubt from reading the majority opinion, i.e., this case has been decided on independent State grounds (cf., People v Stith, 69 N.Y.2d 313, 316).
I do not question that we may invoke the safeguards of the State Constitution and guarantee our citizens even greater protection than the Fourth Amendment provides under appropriate circumstances. If the issue had been raised, we would be justified in adopting a higher State standard to maintain a body of coherent and stable law — as we sometimes, but not necessarily, do in the face of changes in Supreme Court rulings — or because of important considerations involving the legal institutions and environment in the State and our public policy process which theoretically enable us to "fashion workable rules for a narrower, more specific range of people and situations" (Kaye, op. cit., 42 Rec A B City N Y 308). In the past, we have generally refrained from reaching out to interpret article I, section 12 of our State Constitution when construing Fourth Amendment rights, however, and instead have sought to fashion search and seizure rules that promoted consistency in the interpretations given the parallel Federal and State clauses (see, People v P.J. Video, 68 N.Y.2d 296, 303-304). We have "adopted independent standards under the State Constitution [only] when doing so best promotes `predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens'" (id., at 304, quoting People v Johnson, 66 N.Y.2d 398, 407, and listing cases decided under N Y Const, art I, § 12). Typically we have done so when, in our opinion, the Supreme Court has modified its prior rulings to grant citizens less protection than they previously enjoyed (see, e.g., People v P.J. Video, supra; People v Johnson, supra; People v Bigelow, 66 N.Y.2d 417, 427). In such instances, having formulated our State's rules relying on earlier interpretations of the Fourth Amendment, we have seen no reason to conform them again as the Supreme Court changes the national standard. I obviously believe reliance on our State Constitution is justified in such instances. It is also justified if a party has asserted a violation of rights under both Constitutions (see, e.g., People v Class, 67 N.Y.2d 431, 63 N.Y.2d 491). Additionally, if the scope of the claimed Fourth Amendment protection is not settled as a matter of law, we have decided the issue on State grounds, or both grounds, if they have been preserved (see, e.g., People v Hicks, 68 N.Y.2d 234, 243). Finally, State grounds are decisive when only the State claim is raised (see, e.g., People v Gokey, 60 N.Y.2d 309).
I recognize, as the majority's string cites on page 66 indicate, that many older New York constitutional decisions gratuitously cited sections of the State Constitution along with the Federal grounds on which the decisions rested although the State grounds were not preserved. Those decisions were written when the Federal standard was clear or, in some instances, in a different climate, when the Supreme Court was "ahead" of the State courts. They reflect the obvious — that the Federal "floor" was controlling. The decisions are not pertinent in the context of cases such as this in which the court seeks to exercise its powers in conformity with the principles of People v P.J. Video (supra) and People v Johnson (supra) to find a State-wide standard of protection for New York's public employees guaranteed by the State Constitution, which it anticipates may differ from the standard eventually adopted by the Supreme Court.
Moreover, without the benefit of a Supreme Court ruling or the argument of the parties on the subject, I am not prepared to join in the majority's assumption that the expectation of privacy held by this State's public employees in the act and product of urination so differs from that expectation held by other citizens of this Nation that an "independent State ground" should be invoked (see generally, 1 La Fave, Search and Seizure § 2.1, at 221-240 [1978] [discussing the "expectation of privacy" test]). Nor does the majority advance any argument supporting its assumption that it does. If one of the justifications for applying State constitutional principles is that our State courts are in a better position to fashion workable rules responsive to the needs of our own citizens, and I accept that to be an appropriate consideration, we should await a case in which the arguments of our citizens concerning the unique circumstances in New York warranting an independent State standard are raised, rather than forestall Supreme Court determination of the national standard through reliance on an unpreserved State ground.
The traditional Federal constitutional precepts governing search and seizure require a holding in this case that the Board's order falls below the "floor of Federal protection" and, therefore, is unconstitutional. Such a determination makes it unnecessary for the court to now determine whether the State Constitution supports an independent standard of review (compare, People v P.J. Video, 68 N.Y.2d 296, 303-304, supra) and we should not invoke State grounds without some recognized, principled basis for doing so.
Accordingly, I concur only in that part of the majority's holding that rests on Federal constitutional grounds.
Judges KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur with Chief Judge WACHTLER; Judge SIMONS concurs in a separate opinion.
Order affirmed, with costs.