Graham v. Coughlin

• Decision Date: 20 October 1988
• Citation: 531 N.E.2d 640,72 N.Y.2d 1014,534 N.Y.S.2d 919
• Parties: , 531 N.E.2d 640 In the Matter of David E. GRAHAM, Jr., Appellant, v. Thomas A. COUGHLIN, III, as Commissioner of the Department of Correctional Services, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 919

534 N.Y.S.2d 919

72 N.Y.2d 1014, 531 N.E.2d 640

In the Matter of David E. GRAHAM, Jr., Appellant, v. Thomas A. COUGHLIN, III, as Commissioner of the Department

of Correctional Services, Respondent.

Court of Appeals of New York.

Oct. 20, 1988.

Gerald V. Hayes and Peter L. Maroulis, Poughkeepsie, for appellant.

Robert Abrams, Atty. Gen. (John Q. Driscoll, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for respondent.

OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division, 135 A.D.2d 1014, 522 N.Y.S.2d 738, noting that Public Officers Law § 30(1)(e) was not amended to conform with the 1979 amendment to Judiciary Law § 90(4)(e), this being a statutory policy choice for the Legislature.

WACHTLER, C.J., and SIMONS, TITONE and BELLACOSA, JJ.

ALEXANDER, J., concurs in result in a memorandum.

HANCOCK, J., concurs in result in an opinion in which KAYE, J., concurs.

ALEXANDER, Judge (concurring).

I, too, would affirm the order of the Appellate Division, because in my view the Federal felony of which defendant was convicted would also constitute a felony under New York law. Accordingly, I concur in so much of Judge Hancock's concurrence as demonstrates that identity.

HANCOCK, Judge (concurring).

I agree that there should be an affirmance, but only because the Federal felony of which petitioner was convicted would also constitute a felony under New York law. I disagree, for reasons of both statutory construction and policy, with the position taken by the Appellate Division and now adopted by the majority of this court, that the term "felony" as used in Public Officers Law § 30(1)(e) encompasses any felony in any jurisdiction. In my view, the statute does not mandate automatic terminati of a civil servant where his conduct, albeit a felony in another jurisdiction, would amount to only a misdemeanor or be wholly innocent activity under our own law.

Petitioner was charged by a Federal information with one count of mail fraud as an aider and abettor, a felony (18 U.S.C. §§ 2, 1341). Following his guilty plea and conviction, petitioner was discharged from State employment as a correction officer pursuant to Public Officers Law § 30(1)(e) providing for automatic termination upon "conviction of a felony". Petitioner instituted this article 78 proceeding, challenging his discharge on the ground that the crime for which he was convicted would only constitute a misdemeanor under New York law. Petitioner's contention is that he did not have any fraudulent intent but, instead, merely "provide[d his friend] with means or opportunity" to commit mail fraud, the equivalent of committing only criminal facilitation in the fourth degree, a class A misdemeanor (Penal Law § 115.00).

As respondent has argued throughout this litigation, however, the Federal crime to which petitioner actually pleaded guilty and was convicted amounts to insurance fraud in the fourth degree, a class E felony (Penal Law § 176.15). ¹ An essential element of aiding and abetting mail fraud is a sharing in the principal's fraudulent intent (Armco Indus. Credit Corp. v. SLT Warehouse Co., 782 F.2d 475, 485 [5th Cir.]; see also, Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919; United States v. Kyle, 257 F.2d 559 [2d Cir.], cert. denied sub. nom. Gardner v. United States, 358 U.S. 927, 79 S.Ct. 312, 3 L.Ed.2d 301). This is identical to the mental culpability required for insurance fraud ("knowingly and with intent to defraud" [Penal Law § 176.05] ) and, by contrast, considerably greater than that entailed in criminal facilitation ("believing it probable that he is rendering aid" [Penal Law § 115.00] ). For this reason, I agree that petitioner's automatic termination under Public Officers Law § 30(1)(e) was warranted ² and, accordingly, vote to affirm.

I cannot accept the proposition, adopted by the majority, that automatic termination under the statute should be triggered by the conviction in another jurisdiction of a crime which would not amount to a felony under New York law (see also, Judiciary Law § 90[4][e]; and Education Law § 6509[5][a]; contrast with Penal Law § 400.00[1]; and Real Property Law § 440-a). The only previous occasion this court has had to address this issue was in Matter of Keogh v. Wagner, 15 N.Y.2d 569, 254 N.Y.S.2d 833, 203 N.E.2d 298. There, we affirmed, albeit without opinion, a decision of the Appellate Division construing the term "felony" to be as "conceded by all * * * restricted to crimes which are felonies under the laws of the State of New York" (20 A.D.2d 380, 383, 247 N.Y.S.2d 269; see also, 1978 Opns.Atty.Gen. 37). This construction was consistent with a long line of precedents in which this court had uniformly given a similar interpretation to other such provisions. ³ It was not until Matter of Chu, 42 N.Y.2d 490, 398 N.Y.S.2d 1001, 369 N.E.2d 1, that the interpretation adhered to in our prior rulings was subject to any doubt.

In Chu, applying the same provision of the Judiciary Law previously construed in Matter of Donegan, 282 N.Y. 285, 26 N.E.2d 260; see, n. 3, supra), we upheld the disbarment of an attorney on the ground that he had been convicted of a Federal felony. The majority of our court concluded that there was little reason to distinguish between Federal and New York felonies for the purpose of professional discipline. Significantly, the majority was quick to add that the underlying crime in the case was committed in this State and that "there is a New York State felony of substantially the same elements" (42 N.Y.2d, at 494, 398 N.Y.S.2d 1001, 369 N.E.2d 1, supra). Indeed, three members of our court expressly relied on this latter rationale as the sole basis for their concurrence (see, 42 N.Y.2d, at 495, 398 N.Y.S.2d 1001, 369 N.E.2d 1, supra [Wachtler, J., concurring] ). Subsequently, however, in Matter of Thies, 45 N.Y.2d 865, 410 N.Y.S.2d 575, 382 N.E.2d 1351, a majority of this court, over the dissent of the three Judges who had concurred in Chu, abandoned the rule in Donegan and held that the conviction of a Federal felony is always a "felony" under the disbarment provision of the Judiciary Law--whether or not there is an analogous crime under New York law.

The Legislature immediately overruled Chu and Thies and restored the Judiciary Law to the construction given it in Donegan (L.1979, ch. 674). ⁴ In an amendment to Judiciary Law § 90(4), the term "felony" was expressly defined as an offense classified as a felony under New York law or one so classified under the laws of another jurisdiction if it would also constitute a felony in this State (see, para. [e] of § 90[4] ).

Ironically, in the present case, the majority of this court, agreeing with the Appellate Division, relies on that corrective legislation to support a contrary reading of the Public Officers Law. Because "the Legislature has not similarly amended the Public Officers Law", the court below concluded, "there is no reason to read such a limit[ed definition of 'felony'] into Public Officers Law § 30(1)(e)." (135 A.D.2d, at 1015, 522 N.Y.S.2d 738.) But, of course, the Legislature had no reason to amend the Public Officers Law. That statute had never been judicially construed--or misconstrued, in the Legislature's view--in the way the Judiciary Law had been. Indeed, as previously discussed, this court had always, until Chu and Thies, interpreted the unqualified term "felony" in various statutes exactly as the Legislature defined that term in the post-Chu and Thies amendment.

Legislative clarification of a statutory term, for the specific purpose of overruling a recent judicial interpretation, is a forceful indication that, in the Legislature's view, the court misread its original intent (see, McKinney's Laws of N.Y., Book 1, Statutes § 193, at 359; 82 C.J.S., Statutes § 384, at 899-900). Additionally, such legislative action, like the amendment to Judiciary Law § 90(4), cannot logically be deemed any indication that the long-established interpretations of similar statutory provisions, in complete agreement with the recent amendment, are somehow erroneous and ought now to be changed (see, McKinney's Statutes § 191, at 353; 82 C.J.S., Statutes § 384, at 898). Hence, contrary to the position urged by respondent, and now adopted by the majority of this court, basic principles of statutory construction seem, in my view, to compel the conclusion that the unqualified term "felony", as used in Public Officers Law § 30(1)(e), should be read consistent with both our long line of precedents and the legislative overruling of Chu and Thies --the sole exceptions to that long line.

There are also strong policy reasons for adhering to that statutory construction. The Legislature has mandated the automatic discharge of convicted officeholders to assure the public that those employed in government service are "individuals of moral integrity in whom they may, without second thought, place their confidence and trust" (Matter of Toro v. Malcolm, 44 N.Y.2d 146, 152, 404 N.Y.S.2d 558, 375 N.E.2d 739). Public Officers Law § 30(1)(e) strikes a balance, however, between the public's interests and that of its officers: the statute's drastic remedy is imposed only where the offense committed by a public officer is sufficiently egregious to be classified a "felony". Hence, it seems to me quite clear that the operation of this remedy adopted by this State's Legislature, to ensure the integrity of this State's public officers, should only be triggered by crimes which this State's Legislature has unambiguously chosen to consider as felonious conduct (see, Matter of Thies, supra, 45 N.Y.2d at 867, 410 N.Y.S.2d 575, 382 N.E.2d 1351 [Wachtler, Fuchsberg and Cooke, JJ., dissenting]; Matter of Donegan, supra, 282 N.Y. at 290-291, 26 N.E.2d 260; People ex rel. Atkins v. Jennings, 248 N.Y. 46, 52, 161 N.E. 326).

While the term "felony" is uniformly...