Morrisette v. Dilworth , 454 N.Y.S.2d 864 ( 1982 )

Brown, J. (dissenting).

Freedom of association, like freedom of speech, is a fundamental right implicit in the First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment (Broadrick v Oklahoma, 413 US 601; Shelton v Tucker, 364 US 479). A significant abridgement of associational freedom can be justified only by the existence of a compelling State interest, and the burden of showing the existence of such interest is on the State (Elrod v Burns, 427 US 347, 362).

In determining whether or not the regulation at issue here is constitutionally valid under overbreadth analysis, I am cognizant that where conduct and not merely speech is involved the overbreadth of the regulation “must not only be real, but substantial as well, judged in relation to * * * [its] plainly legitimate sweep” (Broadrick v Oklahoma, supra, at p 615). However, in my view, there is a significant issue as to whether the regulation entrenches upon associational freedom without the requisite justification, which cannot be determined on this record. The regulation proscribes association with persons known to have been convicted of any misdemeanor or felony. Because no limitations are placed on the type of crime, the age of the conviction or the nature of the association, the “plainly legitimate sweep” of the regulation remains to be clarified.

I would thus remit this matter to Special Term in order that the commissioner, if he be so advised, demonstrate how the proffered basis for the regulation is consistent and rationally related to its entire sweep and that the police department’s interest cannot be advanced by a more narrowly drawn regulation (cf. Curle v Ward, 59 AD2d 286, mod 46 NY2d 1049).

Lazer, J. P., and Boyers, J., concur with O’Connor, J.; Brown, J., dissents in an opinion in which Mangano, J., concurs.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Police, Suffolk County Police Department, dated January 7, 1980, which found petitioner guilty, after a hearing, of violating a departmental regulation prohibiting fraternization with known felons, and imposed a penalty of 10 days’ forfeiture of accrued vacation time.

Determination confirmed and proceeding dismissed on the merits, with costs.