Citation Numbers: 26 N.E.2d 260, 282 N.Y. 285
Judges: FINCH, J.
Filed Date: 3/5/1940
Status: Precedential
Modified Date: 1/12/2023
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: *Page 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, *Page 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 *Page 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.