F-G-& C-D
False statements made one week apart to obtain unemployment compensation, resulting in conviction on two counts under
CHARGES:
Order: Act of 1952—Section 241(a)(4) [
Order: Act of 1952—Section 241(a)(1) [
Act of 1952—Section 241(a)(1) [
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of a special inquiry officer directing the deportation of the first respondent, granting the second respondent voluntary departure, and directing the latter‘s deportation if he fails to depart voluntarily.
Both respondents are married males and are natives and citizens of Cuba. The first respondent‘s age does not appear in the record. He last entered the United States on June 13, 1954, as a returning resident and first entered this country on November 29, 1948. The second respondent is 41 years old and last entered the United States on March 15, 1955, at which time he was admitted for permanent residence. He had previously entered as a visitor in March 1950 and remained without authority until November 9, 1954, when he was deported. The special inquiry officer held that each respondent
Counsel has raised two principal issues. First, he contends that each respondent was convicted of but one crime. Secondly, he asserts that if each respondent was convicted twice, the convictions arose out of a single scheme of criminal misconduct.
On May 18, 1954, each respondent pleaded guilty to an information containing two counts. The first count in each information charged the making of a false statement on August 13, 1953, for the purpose of obtaining unemployment insurance benefits for the period from August 6 through August 9, 1953. The second count charged the making of a false statement on August 20, 1953, for the purpose of obtaining benefits from August 13 through August 16, 1953. On June 15, 1954, the sentence imposed on each respondent was “$500 fine or 90 days Workhouse and 6 months Workhouse—execution of Workhouse sentence suspended during good behavior of defendant—defendant to make restitution to State of New York.”
The statute violated was
During the oral argument some discussion took place concerning the use of the disjunctive and the conjunctive in the sentence imposed on each respondent as quoted above, and there was some intimation that it actually constituted two sentences. We believe it is clear that only one sentence was imposed on each respondent which consisted of a sentence of six months to the workhouse (suspended) and a fine of $500 with 90 days to be served in the workhouse if the fine was not paid.
Although we agree with counsel that each of the respondents received only one sentence, it does not follow that this establishes that each was convicted of only one crime as counsel contends. Subdivision 4 of
Roberts v. Murphy, 45 N.Y.S. 2d 779 (Supreme Court, Appellate Div., 1944), related to two false statements made on different dates for which an unemployment insurance referee imposed two penalties. This was an administrative proceeding under section 507-A of the New York Labor Law which specifically provides: “Such penalty shall apply only once with respect to each offense.” It was held that the two false statements constituted only one offense and, therefore, only one penalty could be imposed. Section 507-A is not involved in the cases of these respondents. An even more important distinction is that the respondents pleaded guilty to the information containing two counts, whereas there was no occasion for a plea by Mrs. Roberts and she appealed from the imposition of the two penalties. For the reasons indicated, we hold that this decision is inapposite to the cases of the respondents.
Since it is a misdemeanor under
As counsel has asserted, it is true that there is one respect in which People ex rel. De Gran v. McDonnell, supra, differs from the cases of the respondents. In that case, two sentences of six months, to be served consecutively, were imposed. In the cases of the respondents, only one sentence was imposed on each. However, counsel is mistaken in stating in his brief that De Gran pleaded guilty to each of the two counts contained in the information, because he simply pleaded guilty to the information. This is shown by the statement in the court‘s decision which reads, “The defendant pleaded guilty to the information, and thus he was convicted on each of the two counts.” To the same effect is Kondrik v. Foster, 299 N.Y. 329 (Court of Appeals of New York, 1949), in which the defendant pleaded guilty to an indictment and it was held that, when the County Court accepted that plea, “the result was a judgment convicting the defendant on all four counts of the indictment.”
It is only where the record shows a plea of guilty to a particular count that the plea can be considered so restricted; where there is merely an unqualified plea of guilty to an information or indictment, we hold that it constitutes a plea of guilty to all counts of the information or indictment. We conclude that these respondents, by their plea of guilty to the informations, pleaded guilty to both counts of the informations and were each convicted of two crimes. We have previously held that a violation of
Counsel contended that the present record concerning the second respondent (C——D——) is exactly the same as was the record concerning the first respondent when we ordered reopening of the proceedings in his case on October 31, 1958. At that time we held that the first respondent‘s plea of guilty was a plea of guilty to both counts but we were uncertain as to whether the court had the power to sentence on both counts and whether there were two convictions. Since these legal questions have now been resolved in accordance with our discussion above, we reject counsel‘s contention and hold that there is no deficiency in the record concerning the second respondent inasmuch as it shows that he pleaded guilty on May 18, 1954, to the information containing two counts.
The next issue is counsel‘s contention that, if we conclude that each respondent was convicted of two crimes, we should hold that the two crimes arose out of a single scheme of criminal misconduct.
The first charge in the second respondent‘s case is that he is deportable under
The American consular officer who issued the second respondent‘s visa on February 21, 1955, and the special inquiry officer who subsequently admitted him to the United States knew that he had been convicted of a labor law violation but evidently were not aware that two offenses had been committed by this respondent and that, therefore, the provisions of
The second respondent‘s wife and 19-year-old son are lawfully resident aliens and he has a six-year-old daughter who is a citizen. We have given consideration to the provisions of
The second respondent was born in Cuba and natives of Cuba [an adjacent island under
On November 9, 1954, the second respondent was deported from the United States, and the first charge in his case is predicated on the fact that he did not have permission to reapply for admission to the United States. At the hearing he applied for such permission nunc pro tunc. We agree with the special inquiry officer that such permission should not be granted1 at this time since it would serve no useful purpose due to the fact that the second respondent would, nevertheless, remain deportable on the second charge. The special inquiry officer directed that he be granted voluntary departure with a provision for deportation if he fails to depart voluntarily. We concur in this disposition of the second respondent‘s case.
Order: It is ordered that as to the first respondent the appeal be sustained, that the outstanding order of deportation be withdrawn and that the proceedings be terminated in his case.
It is further ordered that the appeal be dismissed as to the second respondent.
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