
    The People of the State of New York, Respondent, v Patrick Scalza, Appellant.
    Argued September 6,1990;
    decided October 18, 1990
    
      POINTS OF COUNSEL
    
      Steven R. Bernhard for appellant.
    
      Denis Dillon, District Attorney (Lisa J. Becker and Bruce E. Whitney of counsel), for respondent.
    
      
      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H Schiff of counsel),
   OPINION OF THE COURT

Bellacosa, J.

Defendant was convicted by a jury of six counts of criminal possession of weapons and ammunition after his pretrial suppression motion was denied by the Nassau County Court. The County Court had preliminarily exercised its discretionary authority to refer the suppression matter to an authorized Judicial Hearing Officer (JHO) for the filing of a report as prescribed in CPL 255.20 (4). Defendant did not object to the use of this procedure at trial but challenged it on appeal, both facially and as applied, on State constitutional grounds only. The Appellate Division upheld the JHO referral statute while affirming the judgment of conviction. A Judge of this Court granted leave to appeal and we allowed the Attorney-General leave to intervene to support the statute’s constitutionality (Executive Law § 71). We now affirm.

CPL 255.20 (4), enacted in 1983 as part of a comprehensive package (L 1983, ch 840), provides relevantly: "Any pre-trial motion * * * may be referred by the court to a judicial hearing officer who shall entertain it in the same manner as a court. In the discharge of this responsibility, the judicial hearing officer shall have the same powers as a judge of the court making the assignment, except that the judicial hearing officer shall not determine the motion but shall file a report with the court setting forth findings of fact and conclusions of law” (CPL 255.20 [4]).

Defendant argues that article VI, §§ 10 and 11 of the New York Constitution, which establishes the County Court, does not allow any part of the court’s function to be discharged by anyone but a Judge. That is defendant’s strict jurisdictional argument addressed to the competence or power to decide. Defendant also asserts a due process violation, claiming that the manner and procedure under which the pretrial suppression motion referral operates deprived him of having this part of his case actually "heard” by a Judge.

The facial attack fails because the core of the statutory authorization retains for the Trial Judge the sole authority to "determine” all issues referred to a JHO by expressly withholding from the JHO the power to "determine” anything. Thus, no unauthorized or unconstitutional diversion of the trial court’s exclusive jurisdiction and responsibility to decide is threatened. We also discern no unfairness or lapse of due process in the method prescribed for the statute’s operation” Defendant’s "as applied” prong, unlike his facial one, must be customarily preserved, and inasmuch as that prerequisite is lacking here, we cannot resolve that claim.

Defendant was arrested and charged with six counts of criminal possession of a weapon, third degree, after the police discovered a large quantity of weapons and ammunition in his home and automobile. The pretrial hearing for suppression of evidence focused on the seized contraband and defendant’s statements to the police. The JHO took testimony, filed findings of fact and conclusions of law with the County Court, and recommended denial of the suppression motion. County Court, after reviewing the report and the entire record of the hearing, adopted the JHO’s findings and recommendation and denied defendant’s motion to suppress in the court’s own order.

We start with the elementary principles that acts of the Legislature enjoy a strong presumption of constitutionality (People v Davis, 43 NY2d 17, 30) and that it possesses broad authority to adopt procedural rules for the courts (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5-6). The substantial burden of proving unconstitutionality beyond a reasonable doubt rests with a statute’s antagonist (Matter of Van Berkel v Power, 16 NY2d 37, 40).

A special committee, organized by the judicial branch itself, studied and recommended the JHO program in the early 1980’s (see, Report of Comm to Utilize Services of Retired Judges, chaired by former Mayor John Lindsay, to then-Chief Judge Cooke, reprinted in the 5th Ann Rep of Chief Administrator of Courts [1983]). The Committee proposed the creation of a new title and function, that of JHOs, to be performed by former Judges. It found that former "judges, if utilized properly, could make a significant contribution toward alleviating some * * * backlog and delay” (id., at 110). One specific objective was to utilize the services of these experienced officers in expediting motion practice in criminal cases as a direct aid to Judges, freeing the Judges to conduct more trials (id., at 112-113).

The Legislature, spurred by the initiative and findings, enacted CPL 255.20 (4) as part of an integrated plan to use former Judges as Hearing Officers to expedite the disposition of cases in civil matters and in some criminal case aspects (L 1983, ch 840, §§ 2-15). In criminal matters, JHOs are authorized to hear and report on pretrial motions, as was done here, and they may also, with the parties’ consent, try issues of fact and preside at bench trials of class B and unclassified misdemeanors (CPL 350.20). Recent efforts to authorize expanded utilization have not yet been enacted (see, Ann State of Judiciary Message of Chief Judge, 1989-1990, at 33; Assembly Bill 8228-A, 1989-1990 Legislative Session, introduced at the request of the judicial branch).

As directed under chapter 840 (Judiciary Law § 854), the Chief Administrator of the Courts promulgated rules for JHO qualification and for operational procedures (see, Rules of Chief Administrator, 22 NYCRR part 122). After consultation with appropriate Administrative and Deputy Chief Administrative Judges and the Presiding Justice of the appropriate Appellate Division (22 NYCRR 122.2 [c], [d]), qualified former Judges were designated for availability and then selection by Trial Judges as needed.

CPL 255.20 (4), in authorizing a Trial Judge to select in the court’s discretion a JHO from a previously screened and authorized list to perform only the function of holding a pretrial hearing and making a report that is filed with the referring court, recognizes and preserves the trial court’s nondelegable and exclusive authority to decide the suppression motion. The court decides only after review of the report, all exhibits, motion papers, and the complete record of the hearing. The Trial Judge always keeps the plenary power to reject, accept or modify the JHO’s report in whole or in part based on the court’s independent review. Significantly, the Trial Judge designates in the first instance and holds the tether on the case throughout the completion of the referral. Indeed, the statute implicitly authorizes the trial court sua sponte or on application to cancel the referral and bring the entire matter back before itself, go beyond the written record and order further proceedings such as hearing relevant witnesses for itself if deemed necessary, or even to redo the pretrial proceedings de novo (see, 1983 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 255.20, 1990 Cum Ann Pocket Part, at 190).

Although the defendant argues that article VI, §§ 10 and 11 of the New York State Constitution prohibit referrals to JHOs to conduct suppression hearings, these sections contain no such express or implied prohibitory language. Rather, they provide essentially for the organization and jurisdiction of County Courts. CPL 255.20 (4) in no way clashes with those sections and does not undermine or diminish the court’s exclusive power to decide. By its terms, the statute preserves and reinforces it.

Defendant’s due process claim is readily answered. United States v Raddatz (447 US 667 [1980]) provides useful guidance in this regard. The Supreme Court there considered a similar Federal due process challenge to the Federal Magistrates Act (28 USC § 636 [b] [1]). The purpose and design of that statute are akin to CPL 255.20 (4), in that the Federal Magistrates Act authorizes a United States District Court to refer a suppression motion to a Magistrate, who files proposed findings of fact and recommendations with the District Court. The District Court Judge, not the Magistrate, actually decides the motion on the record developed before the Magistrate. The Supreme Court upheld the procedure, concluding that due process was satisfied even though the District Judge may not personally listen to the witnesses, since the Judge acts as the ultimate decision maker and has the discretion to accept, reject or modify the Magistrate’s proposed finding (447 US, supra, at 680-681). On the due process argument there, the Supreme Court differentiated the purposes underlying a suppression hearing from the ultimate issue of guilt or innocence, and concluded that the protections at a suppression hearing "may be less demanding and elaborate than the protections accorded the defendant at the trial itself.” (United States v Raddatz, 447 US, supra, at 679.)

In the instant case, too, defendant’s right to be heard by the court, with all attendant protections and procedures, is satisfied by the terms of the statute. Indeed, defendant took advantage of his due opportunity for a hearing before the JHO, and his motion papers and arguments addressed to the pretrial record and the JHO’s findings were fully presented to the suppression court Judge, who then reviewed the entire record before making the suppression motion determination in the court’s own order. Thus, while the suppression Judge did not personally listen to the witnesses’ testimony, the court "heard” the motion in a customary juridical sense of that phrase (e.g., deciding or reviewing a matter or record on submitted papers without oral presentation). The Judge alone then denied the motion, not the JHO.

We have held that due process claims under New York’s Constitution, like those raised under the United States Constitution, require the balancing of factors — "an evaluation of the interests of the parties to the dispute, the adequacy of the contested procedures to protect those interests and the government’s stake in the outcome.” (La Rossa v Abrams, 62 NY2d 583, 588; see also, Mathews v Eldridge, 424 US 319, 334-335.) Here, defendant’s opportunity to present evidence and testimony to a neutral fact finder selected by the Judge who will decide the case and all its issues, coupled with the Trial Judge’s de novo review powers and options, provides process that is due. The investigative and empirical record also manifest a substantial State interest in the objective of CPL 255.20 (4) to lessen delay, a recognized evil to the fair administration of the criminal justice system. The discretionary statutory procedure helps in this regard by supplying the court system with the excellent resource of experienced former Judges who may hear, but not determine, time-consuming pretrial motions as judicial officers to sitting Judges so that the latter can concentrate efficiently on trying cases. Thus, we hold that CPL 255.20 (4) is facially valid; defendant’s reviewable arguments fail; and his burden has not been satisfied.

While we cannot decide the "as applied” constitutionality because defendant failed to object to the qualifications of the specific JHO to whom this pretrial matter was referred, we note that the requirements for JHO designation were recently strengthened (Rules of Chief Administrator of Courts, 22 NYCRR 122.1 [a]). Effective January 1, 1991, a retired Judge must have served at least a year as a Judge of the Unified Court System in a court other than a Town or Village Court to qualify for designation as a JHO.

The views expressed in the dissenting opinion do not warrant direct response other than the analysis and authorities already supplied by the opinion of the Court to decide this case.

Accordingly, the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). Stressing the goals of improving the efficiency of our courts and expediting the disposition of pretrial motions in criminal cases, the majority has ratified yet another legislative effort to transfer the duties of elected, constitutional Judges to administratively appointed functionaries. While recognizing as a general principle the existence of a core of judicial authority that is both "nondelegable and exclusive” (majority opn, at 608), the majority nevertheless declines to include in that category what I consider to be one of the most important areas of fact finding: determinations of credibility based on the witnesses’ appearance, tone of voice and demeanor. Since, in my view, the majority’s analysis assigns too little importance to the principle that "[t]he one who decides must hear” (Morgan v United States, 298 US 468, 481) and, as well, accords insufficient weight to the individual liberty and privacy interests that are at stake in these pretrial proceedings, I must, respectfully, dissent.

Initially, I do not quarrel with the goals of alleviating the backlog in the criminal courts and expediting the movement of cases through the system. As the majority notes, protracted delays in resolving criminal charges undermine the fairness of our criminal justice system and erode the public’s confidence in its ability to play a meaningful role in the growing crime problem confronting our society. Further, as the 1983 Report prepared for former Chief Judge Cooke demonstrated, there can be no doubt that our State’s retired Judges, with all of their special knowledge and experience, have a substantial and important contribution to make in improving the efficiency of our courts (see, Report of Comm to Utilize Services of Retired Judges, reprinted in 5th Ann Rep of Chief Administrator of Courts [1983]). However, our role as a reviewing court is not to endorse or reject the legislatively identified aims, but rather to determine whether the manner in which those aims have been implemented, by both the Legislature and the Chief Administrator, comports with constitutional standards. It is to those constitutional considerations that I now turn.

Article VI, §§ 10 and 11 of the State Constitution provide for the continuance of the County Courts, set forth the terms and qualifications of County Court Judges and establish the jurisdiction of these courts over "all crimes and other violations of law.” Although the majority makes the sweeping assertion that these constitutional sections merely "provide * * * for the organization and jurisdiction of County Courts” (majority opn, at 609), the majority also acknowledges the County Courts’ "nondelegable and exclusive authority” to decide suppression motions, making clear its own view that there are, in fact, limits on what tasks may be removed from the list of traditional judicial responsibilities and assigned elsewhere. Thus, notwithstanding the Legislature’s constitutional power to prescribe procedural rules to govern the practice in the County Courts (NY Const, art VI, § 30; see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1), we are all evidently in agreement on the basic principle that article VI, §§ 10 and 11 establish a bedrock of inalienable judicial authority and duty. It is in relation to the precise contours of this authority that we differ.

The majority concludes that CPL 255.20 (4) does not result in an impermissible delegation of judicial authority because it is the County Court Judge who decides whether a reference should be made, it is the Judge who "holds the tether on the case throughout the completion of the referral” and, most importantly, it is the Judge who, despite a reference to a Judicial Hearing Officer (JHO), retains the plenary power to accept, reject or modify the JHO’s determination — and even to conduct a de novo review where necessary (majority opn, at 608-609). However, in this context, "[o]ne of the essential elements of the determination * * * is the weighing and appraising of testimony.” (Holiday v Johnston, 313 US 342, 352.) In my view, a Judge who merely "holds the tether” and does not personally preside at a suppression hearing cannot realistically be expected accurately to perform that task.

As this Court has previously observed, there are "peculiar advantages [to] having seen and heard the witnesses” that cannot be replaced by a review of the cold record (People v Prochilo, 41 NY2d 759, 761; see, United States v Oregon Med. Socy., 343 US 326, 339). Thus, by authorizing references to JHOs with the understanding that they will preside at suppression hearings and make recommended "findings of fact” and "conclusions of law”, CPL 255.20 (4) permits the transfer of a critical aspect of the judicial decision-making process to nonjudicial officers and' thereby results in an impermissible delegation of the elected County Court Judges’ authority. Moreover, the impairment can hardly be characterized as de minimis, since the vast majority of suppression determinations involve, as the primary fact-finding task, an assessment of the conflicting witnesses’ truthfulness.

Contrary to the majority’s analysis, the Judge’s apparent implied authority to hold de novo proceedings (see, 1983 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 255.20, 1990 Cum Ann Pocket Part, at 190), which the Court has now formally adopted as law, does not ameliorate the statute’s constitutional infirmity. Even assuming that a residual judicial power to go beyond the record developed before the JHO was contemplated, it is evident that the Legislature did not intend that such power would be used with any degree of frequency, since routine resort to de novo proceedings would reduce the JHOs to "just another layer of delay and red tape” (id.). Moreover, the availability of de novo proceedings in those "exceptional instances where the court * * * want[s] to hear the parties or their counsel” (id.) does not provide a solution for the bulk of ordinary cases in which what I believe to be the nondelegable fact-finding duties of the court are, in fact, delegated to JHOs.

It must be stressed that the delegation of such an important judicial function to nonjudicial officers represents a substantive constitutional infirmity and not a mere technical objection. By adopting article VI, §§ 10 and 11 of the State Constitution, the people of this State have indicated their wish to have matters within the jurisdiction of the County Courts determined by Judges who are county residents and are chosen by the county’s electors every 10 years (see, NY Const, art VI, § 10 [a], [b]). Presumably, the provision for election to a 10-year term represents the people’s chosen method of preserving a measure of judicial independence while, at the same time, ensuring a degree of judicial accountability. This balance is upset, and the accountability/independence mechanism is circumvented, when substantial decision-making functions are transferred from County Court Judges to administratively designated JHOs (see, 22 NYCRR 122.2 [c], [d]). Ironically, it is in the suppression hearing context, where the enforcement of basic constitutional rights is at stake and the credibility of law enforcement personnel must be judged, that the polar values of independence and public accountability take on particular importance. "Indeed, it is precisely in resolving constitutional issues that are dependent on questions of credibility as between a government official and one accused of [a] crime that a detached and independent arbiter may be most indispensable.” (United States v Raddatz, 447 US 667, 711 [Marshall, J., dissenting].) And, contrary to the majority’s suggestion (majority opn, at 610), an appointed JHO’s purported neutrality is no substitute for the independence and long-term public accountability of an elected Judge.

As to the majority’s disposition of appellant’s due process argument, I find myself once again, unable to agree. Of course, as the majority observes, the Supreme Court majority’s decision in United States v Raddatz (447 US 667, supra) is all but dispositive of any claims appellant might make under the Due Process Clause of the Federal Constitution. However, we remain free to chart a separate course under our own State constitutional due process provisions (NY Const, art I, § 6; see, e.g., People v Vilardi, 76 NY2d 67). Although the majority has apparently chosen to follow the Raddatz analysis in resolving appellant’s State constitutional claim, I would opt for a different approach in light of our long-standing recognition of the central importance of suppression hearings in many criminal proceedings (see, People v Anderson, 16 NY2d 282). Indeed, while I agree with the majority’s general premise that, like its Federal counterpart, due process analysis under the State Constitution requires a balancing of the parties’ interests, I cannot concur in its conclusory assertion, with no reference at all to the accused’s weighty interests, that the opportunity to present evidence to a "neutral fact finder” is all the process that is due (majority opn, at 610).

The difficulty I have with the majority’s position, as well as with the position of the Raddatz majority, is their assumption that the accused’s interest in the outcome of a suppression hearing is worthy of only diminished protection because the ultimate issue of guilt or innocence is generally not involved. The Raddatz majority went even further, suggesting that a fair analogy can be made to the interests at stake in administrative adjudications, which are also often made by agency boards on the basis of cold records (447 US, at 680). The latter suggestion is unacceptable because it ignores the obvious fact that, unlike most administrative proceedings, the outcomes of suppression hearings implicate the basic liberty interests of the accused. Furthermore, although not considered as a serious or important factor by either the Raddatz court or this Court, the results in these pretrial suppression hearings implicate the constitutional rights of privacy and freedom from compelled and, in some instances uncounseled, self-incrimination — matters which are of paramount concern to all citizens.

Most importantly, the majority’s analysis in this case is wanting because it ignores that, as a practical matter, "the determination of the motion to suppress often determines the ultimate question of guilt.” (People v Anderson, 16 NY2d 282, 288, supra.) Even where it is not actually determinative, "a denial of a motion to suppress evidence is a crucial step in a criminal prosecution; it may often spell the difference between conviction or acquittal” (People v Lombardi, 18 AD2d 177, 180, affd 13 NY2d 1014, quoted in People v Anderson, supra, at 287). Accordingly, we have held that a defendant has the same "absolute” right to be present at a suppression hearing as he has to be present at trial and that "[e]xpediency may not dictate procedural changes” in that result (People v Anderson, supra, at 287-288).

I would apply the same principles here and conclude, as did Justice Marshall in Raddatz, that "[a] rule that would allow a criminal defendant to face a jail sentence on the basis of factual findings made by one who has not heard the evidence is * * * foreign to notions of fair adjudicative procedure embodied in the Due Process Clause.” (United States v Raddatz, 447 US, at 697 [Marshall, J., dissenting].) Even in the case of pretrial suppression hearings, "our constitutional tradition rejects the notion that factual findings in criminal cases may be made by an official who acts in isolation and on the basis of a cold record.” (Id., at 695-696.) Since that is precisely what CPL 255.20 (4) authorizes when it permits the delegation of the duty to preside and make fact findings to JHOs, I would hold that statute to be violative of our State Constitution.

Before closing I must note my concern with the apparently growing trend to replace constitutional Judges with JHOs as a means of alleviating the overcrowded dockets in our courts. Under CCA 110 (e), "hearing officers” appointed from a list by the local Administrative Judge may try and determine litigated, nonjury controversies in the Housing Part of New York City Civil Court, may enter final, appealable judgments and may punish for contempt. Shortly after this legislative delegation of judicial authority was upheld by the Appellate Division (Glass v Thompson, 51 AD2d 69), the Legislature changed the title of the position from "hearing officer” to "housing judge” to invest these appointees "with as much authority and dignity as possible” (Babigian v Wachtler, 133 Misc 2d 111, 114, affd 126 AD2d 445, affd 69 NY2d 1012). Similarly, in 1985 the Legislature enacted the Child Support Enforcement Act and gave appointed "hearing examiners” substantial adjudicative responsibilities in Family Court (L 1985, ch 809; see, Family Ct Act §§ 433, 439). Finally, as the majority notes, there have been recent, albeit unsuccessful, efforts "to authorize expanded utilization” of JHOs in criminal proceedings (majority opn, at 608).

In light of this recent history, there is much room for concern about the gradual replacement of the traditional judicial system, with all its rigidities and awkwardness, in favor of one that is more efficient and flexible but rests heavily on the use of nonjudicial personnel. While the chronic logjams in our courts, the threat of inundation and breakdown in some of the most critical parts of the justice system and the insistent public pressure to "process” cases more swiftly make this a tempting option, I am hesitant to embrace it too readily, lest "principles that were meant to endure be sacrificed to expediency.” (United States v Raddatz, 447 US, at 714 [Marshall, J., dissenting].) Accordingly, I dissent.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr., concur with Judge Bellacosa; Judge Titone dissents and votes to reverse in a separate opinion. Order affirmed. 
      
      . This is a case in point. At his suppression hearing, appellant testified that, while in handcuffs at the police station, he had made specific and repeated requests for counsel, all of which were ignored. He further stated that the consents he had given for the searches of his car and home were obtained as a result of police threats that the vehicle and house would otherwise be "taken apart” and "torn up”. Appellant’s wife stated that similar threats had been made to her when the police arrived at the house for the search. The police officers involved in the questioning and searches gave an entirely different version of events. Thus, the disposition of appellant’s motion to suppress his statements and physical evidence turned largely on a determination of the relative credibility of appellant’s and the investigating officers’ conflicting testimony.
     
      
      . Our Court has not squarely addressed the issue presented in Glass. In Babigian v Wachtler (69 NY2d 1012), which involved a challenge to a subsequent related measure, we merely noted that because the litigants had assumed the correctness of the Glass decision we would do the same for purposes of deciding the issue then before us.
     
      
      . Ironically, despite the majority’s reliance in this case on the trial court’s continuing "nondelegable and exclusive authority to decide the suppression motion” (majority opn, at608-609), one of the proposals to which the majority has referred would have transferred to JHOs the power to "hear and determine”, rather than merely to "hear and report”, in certain designated matters (Ann State of Judiciary Message of Chief Judge, 1989-1990, at 33, cited in majority opn, at 608).
     