135 A.D.2d 1014, Graham v. Coughlin

Citation:135 A.D.2d 1014, 522 N.Y.S.2d 738
Party Name:Graham v. Coughlin
Case Date:December 23, 1987
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 1014

135 A.D.2d 1014

522 N.Y.S.2d 738

In the Matter of David E. GRAHAM, Jr., Respondent,

v.

Thomas E. COUGHLIN, III, as Commissioner of the Department of Correctional Services, Appellant.

Supreme Court of New York, Third Department

December 23, 1987.

[522 N.Y.S.2d 739] Robert Abrams, Atty. Gen. (John Q. Driscoll, of counsel), Albany, for appellant.

Peter L. Maroulis (Gerald V. Hayes, of counsel), Poughkeepsie, for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the Supreme Court (Kahn, J.), entered June 16, 1987 in Albany County, which, inter alia, granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul respondent's determination that petitioner's employment with the Department of Correctional Services had been vacated pursuant to Public Officers Law § 30.

Petitioner was a State correction officer. In December 1985, he pleaded guilty to mail fraud in the United States District Court for the Northern District of New York. Mail fraud is a felony under Federal law (see, 18 U.S.C. § 1341; see also, 18 U.S.C. § 1). The conviction stemmed from petitioner's role in aiding an individual in disposing of a car for the purpose of collecting the insurance on the vehicle. The fraudulent transaction took place in this State. On January 10, 1986, petitioner was notified that since he had been convicted of a felony, his position as a correction officer had been terminated pursuant to Public Officers Law § 30(1)(e). Petitioner then commenced the instant proceeding seeking reinstatement and back pay. Supreme Court granted the petition. Respondent appeals.

Respondent contends that a conviction of the Federal felony of mail fraud should implement the automatic vacatur provision of the Public Officers Law. We agree. Public Officers Law § 30(1) provides in pertinent part as follows:

Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:

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e. His conviction of a felony * * *.

Similar language contained in Judiciary Law former § 90 was construed by the Court of Appeals as requiring the automatic disbarment of an attorney upon conviction of a Federal felony despite the fact that there was no State statute matching the Federal felony (Matter of Thies, 45...

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