26 N.E.2d 260 | NY | 1940
Lead Opinion
The decision in this case involves the interpretation of section
As a result of the collapse of the guaranteed mortgage companies in the city of New York in 1933, appellant was indicted and convicted in the United States District Court for the Southern District of New York of the crime of conspiracy to use the mails to defraud. (U.S. Code, tit. 18, § 88.) The conviction has been affirmed by the United States Circuit Court of Appeals, Second Circuit, and application for certiorari has been denied by the Supreme Court of the United States. Likewise, petition for pardon has been denied by the President of the United States.
The crime of conspiracy, of which appellant stands convicted, may be punished by imprisonment for not more than two years. (U.S. Code, tit. 18, § 88.) By the laws of the United States, "All offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies. All other offenses shall be deemed misdemeanors." (U.S. Code, tit. 18, § 541.) Under the law of New York, however, unless special provision is made therefor (See Penal Law, §§ 581, 953, 1436, 2052), conspiracy to commit a crime is only a misdemeanor. (Penal Law, § 580.) Thus appellant has been convicted of a crime which is a felony under the laws of the United States but which would be only a misdemeanor when cognizable under the laws of this State.
The Judiciary Law of this State provides: *288
"§ 88. Admission to and removal from practice by appellate division. * * *
"3. Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be stricken from the roll of attorneys.
"4. Upon a reversal of the conviction for felony of an attorney and counsellor-at-law, or pardon by the president of the United States or governor of this state, the appellate division shall have power to vacate or modify such order or debarment."
"§ 477. Attorney convicted of felony shall cease to be attorney. Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such."
Acting under its interpretation of these sections, the Appellate Division, first judicial department, has stricken the name of appellant from the roll of attorneys upon the presentation of exemplified copies of the judgment of conviction and without further hearing upon the ground that it is constrained so to do by subdivision 3 of section
The Judiciary Law commits to the Appellate Division in full measure responsibility for admission to and removal from practice. (Judiciary Law, §
In view of the reference to presidential pardons in subdivision 4 of section 88, appellant does not contend that the term "felony," as used by the Judiciary Law, be confined to the definition in section 2 of the Penal Law, which provides that a felony is "a crime which is or may be punishable by (1) death; or (2) imprisonment in a state prison." Obviously, the President of the United States cannot pardon offenders against the laws of this State, and, therefore, subdivision 4 of section
At early common law the term "felony" was applied to describe the more serious offenses cognizable in the royal courts, conviction for which entailed forfeiture of life, limb and chattels and escheat of lands to the felon's lord after a year and a day in the king's hands. (2 Holdsworth, History of English Law, 357, 358.) Subsequently, however, the classification was so greatly enlarged (4 Holdsworth, op. cit. supra, 501-512), that many offenses not involving moral turpitude were included therein (e.g., fishing in a private pond by night and breaking the head of a private pond by night or day, 31 Henry VIII, ch. 2; witchcraft, 5 Eliz. ch. 16; 1 Jac. I, ch. 12; casting the queen's nativity, 23 Eliz. ch. 2; the failure of Egyptians to leave the country within a specified time, 1, 2 Philip Mary, ch. 4). The reception of common law in this country and the development of numerous sovereign jurisdictions resulted in many instances in complete reclassification of crimes and punishments. Naturally, the system adopted by the various legislative bodies did not coincide. Consequently, although there is in effect unity in the condemnation by the use of the term "felony" of certain basic offenses against society, *290 e.g., murder, robbery, arson, etc., generally the meaning of the term varies with the jurisdiction. As was said in Matter ofBiggs (
Similarly, in discussing the clause of the United States Constitution which authorizes Congress to define and punish felonies committed on the high seas, it was said by Madison: "Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several states, would be as impracticable, as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper." (The Federalist, No. XLII [Lodge ed.], 260, 261.)
Thus the classification of crimes into felonies and misdemeanors represents the view which the given jurisdiction takes of the gravity of the offense.
Section
Since various consequences, in addition to the punishment prescribed by the Penal Law have always been visited upon the felon (e.g., disqualification from holding positions of trust, Surr. Ct. Act, § 94, subd. 4; loss of franchise, Election Law [Cons. Laws, ch. 17], § 152; formerly, disqualification as a witness, 2 R.S. 701, § 23; harsher punishments Penal Law, §§ 1941, 1942), the problem has arisen before in the interpretation of statutes as to whether convictions for felony, as defined by the laws of other jurisdictions, should be followed by the consequences which would result upon conviction for felony as defined by the statutes of this State. (Sims v. Sims,
In Sims v. Sims (supra), where 2 R.S. 701, section 23, provided in effect that no person "sentenced upon a conviction for felony" should be competent to testify in any cause, it was said, "I think it quite clear that the disqualification created by this statute is consequent only upon a conviction in this State * * *. Crimes might be felonies in other States which did not fall within our statutory definition." (pp. 468, 469.)
Likewise, in construing the terms of a commutation of sentence by the Governor, it was held in People ex rel. Atkins v.Jennings (supra) that the use of the term "felony" referred to crimes which are felonies by the laws of this State. More recently, in Matter of Cohen (supra) this court affirmed a determination that the word "felon," as used in subdivision 4 of section 94 of the Surrogate's Court Act, in disqualifying certain persons from holding fiduciary *292 offices, does not include one rendered a felon by Federal statute who was not such under New York law.
But there is a further reason for such an interpretation. Although disbarment is not strictly a punishment for crime, but only the withdrawal of a privilege (Matter of Rouss,
It is urged, however, that subdivision 4 of section
Nothing in this opinion should be taken to change the discretion now lodged in the Appellate Division in dealing with an attorney under subdivision 2 of section 88.
The proceeding is remitted to the Appellate Division which may proceed under subdivision 2 of section
The order of the Appellate Division should be reversed and the proceeding remitted to the Appellate Division to proceed in accordance with this opinion.
Dissenting Opinion
Appellant, while a member of the bar of this State, was convicted in the United States District Court for the Southern District of New York of the offense of conspiracy to use the mails to promote frauds. This offense against the United States (U.S. Code, tit. 18, § 338) is deemed to be a felony (Id. §§ 88, 541). Upon the judgment of his conviction thereof and nothing else, the Appellate Division made its order finally removing the appellant from the practice of the law.
The court assumed to act in obedience to the following provision of the Judiciary Law of this State: "Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be stricken from the roll of attorneys." (§ 88, subd. 3.) It is argued for the appellant that the word "felony," as so used, excludes the Federal felony of conspiracy to commit an offense against the United States. The base of this argument is the circumstance that in this State such conspiracies as are made punishable by the Penal Law are therein generally classified as misdemeanors. (Art. 54.) The question for decision thus turns upon the scope of *294 the foregoing provision of the Judiciary Law rather than upon any internal construction thereof; that is to say, the issue is whether that provision is applicable to the situation of the appellant.
In both the Federal criminal law and the criminal law of this State, the sole test of whether a given offense is a felony is the extent of the punishment therefor. Section 541 of title 18 of the United States Code provides that all offenses which may be punished by death or by imprisonment for a term exceeding one year shall be deemed felonies and that all other offenses shall be deemed misdemeanors. The New York Penal Law provides that a felony is a crime which is or may be punishable by death or by imprisonment in a State prison; that any other crime is a misdemeanor; that no person shall be imprisoned in a State prison if the term or maximum term of his sentence be less than one year; and that where a person is convicted of a crime for which the punishment is imprisonment for a term exceeding one year, or is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a State prison. (Penal Law, §§ 2, 2181, 2182, subd. 1, 2183.) Under the United States Code, conspiracies to commit offenses against the United States may be punished by imprisonment for not more than two years. (Tit. 18, § 88.) In a word, the statutory Federal offense of which the appellant was convicted in the Federal court called for punishment in a degree which meets the New York statutory measure of a felony.
Why, then, is that offense not included in the word "felony" as used in the foregoing provision of the Judiciary Law? Counsel for the appellant makes this answer: "The Federal law says that every conspiracy is a felony, and the New York law says that no conspiracy, not even a conspiracy to commit a felony, is a felony. There is a clearly intelligible public policy behind the New York law. * * * The New York law, therefore, in effect says to the prosecutor: `If you can convict this man only through the use of the device of a conspiracy charge, it is *295 not so certainly a just conviction as to permit the severe penalties prescribed for felonies.' The federal law ignores these considerations. The decision below gives no effect to this difference in policy between the two sovereignties."
With that reasoning I cannot agree. To my mind, it means that the statutes of the United States are in this State foreign laws which for our State purposes must be taken to be limited by our local policies. Such a proposition is, of course, entirely inadmissible. "The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty." (Claflin v. Houseman,
When the appellant was admitted to the bar of this State, he took the prescribed oath that he would support the Constitution of the United States. (Judiciary Law, §
I see no reason for saying that the word "felony," as used in the foregoing provision of the Judiciary Law, *296 excludes the felony of which the appellant was convicted in the Federal court.
My vote is to affirm the order of the Appellate Division.
LEHMAN, Ch. J., RIPPEY and LEWIS, JJ., concur with FINCH, J.; LOUGHRAN, J., dissents in opinion in which SEARS, J., concurs; CONWAY, J., taking no part.
Ordered accordingly.