Keogh v. Wagner

• Citation: 247 N.Y.S.2d 269,20 A.D.2d 380
• Parties: In the Matter of J. Vincent KEOGH, Petitioner-Respondent, v. Robert F. WAGNER, Abraham D. Beame, Paul R. Screvane, Edward R. Dudley, Joseph F. Periconi, Abe Stark, John T. Clancy and Albert V. Maniscalco, constituting the Board of Trustees of the New York City Employees' Retirement System, Respondents-Appellants.
• Decision Date: 27 February 1964
• Court: New York Supreme Court Appellate Division

Page 269

247 N.Y.S.2d 269

20 A.D.2d 380

In the Matter of J. Vincent KEOGH, Petitioner-Respondent, v. Robert F. WAGNER, Abraham D. Beame, Paul R. Screvane, Edward R. Dudley, Joseph F. Periconi, Abe Stark, John T. Clancy and Albert V. Maniscalco, constituting the Board of Trustees of the New York City Employees' Retirement System Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Feb. 27, 1964.

Fred Iscol, New York City, of counsel (Seymour B. Quel and Irwin L. Herzog, New York City, with him on the brief; Leo A. Larkin, Corp. Counsel, attorney), for appellants.

John P. McGrath, New York City, of counsel (Martin D. Jacobs and Jacob W. Heller, New York City, with him on the brief; Reavis & McGrath, New York City, attorneys), for petitioner-respondent.

Morris Shapiro, New York City, for City Club of New York, amicus curiae.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and BASTOW, JJ.

VALENTE, Justice.

This is an appeal from an order in an Article 78 proceeding annulling a determination of The Board of Trustees of the New York City Employees' Retirement System (1) denying petitioner's application, made on June 19, 1962, for retirement on July 19, 1962 by reason of his having attained the minimum service retirement age of 55 years, and (2) denying a supplemental application for retirement under subdivision 2 of § B3-36.0 of the Administrative Code based on petitioner's being an honorably discharged veteran of the Armed Forces of the United States who had attained the age of 50 years and had completed 25 years of allowable service. Special Term directed that the Board, at its next scheduled meeting, approve petitioner's application for retirement effective as of July 19, 1962.

There is no dispute as to the facts. Petitioner, then a Justice of the Supreme Court of the State of New York, was on June 16, 1962 found guilty by a jury in the United States District Court for the Southern District of New York of conspiring to violate a Federal Statute (18 U.S.C. § 1503) proscribing attempts to influence, obstruct or impede the administration of justice. Thereafter, on August 2, 1962, petitioner was sentenced to a term of imprisonment for two years. The judgment of conviction was affirmed on appeal on April 25, 1963. (United States v. Kahaner et al., 317 F.2d 459, cert. denied on October 14, 1963, sub nom. Keogh v. United States, 375 U.S. 836, 84 S.Ct. 73, 11 L.Ed.2d 65.)

Petitioner's applications for retirement were denied by the Board on the ground that the jury's verdict of guilt on June 16, 1962, constituted a conviction within the intendment of Public Officers Law, § 30, subd. 1, par. e. This in the opinion of the Board vacated petitioner's office and terminated his membership in the Retirement System, thereby precluding any application for retirement subsequent to June 16, 1962 based upon petitioner then being a 'member' in city-service as required by Administrative Code, § B3-36.0, subdivisions 1 and 2.

Special Term held (1) that Section 30 of the Public Officers Law was inapplicable to petitioner since the provisions of Article 13, sections 10 and 11 of the Constitution of the State of New York (now §§ 5, 6) were the exclusive method for removal of judicial officers; (2) that even if Section 30 of the Public Officers Law was pertinent, it appeared, that although a jury in the Federal Court had found petitioner guilty on June 16, 1962, petitioner had not yet been 'convicted' within the intendment of the Public Officers Law until sentence, which occurred on August 2, 1962; and (3) that, in any event, petitioner was entitled to qualify for retirement, even though not in the City service, because of the provisions of subdivision 2 of § B3-36.0 of the Administrative Code since he was a veteran who had attained the age of fifty and had completed at least 25 years of allowable service. ^*

It is unnecessary to pass upon all the three grounds upon which Special Term rested its decision. We find that the determination can sufficiently be upheld upon the ground that petitioner's office was not vacated--within the meaning of paragraph e of subdivision 1 of Section 30, of the Public Officers Law[20 A.D.2d 383] --by the verdict of guilty rendered by the jury in the fedeRal courT on June 16, 1962. The word 'convicted' as used in that Section must be construed to include not only the verdict of guilty but also the judgment of the Court thereon.

Reference to § B3-36.0, subd. 1, of the Administrative Code shows that an application for retirement on the basis of attainment of the minimum service retirement age may be made by any 'member in city-service'. Petitioner while he held the office of Justice of the Supreme Court was a 'member in city-service' and he remained such a 'member' until such time as he was either removed from office or the office which he held became vacant.

Section 30 of the Public Officers Law provides, insofar as is pertinent herein, as follows:

' § 30. Creation of vacancies.

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

* * *

* * *

'e. His conviction of a felony, or a crime involving a violation of his oath of office; * * *'

It is conceded by all that the term 'felony' as used in the above statute is restricted to crimes which are felonies under the laws of the State of New York. Since the crime of conspiracy to obstruct the due administration of justice is a misdemeanor under New York law (Penal Law, § 580)--although a felony under Federal law--that part of subd. 1, par. e. of Section 30 of the Public Officers Law relating to 'conviction of a felony' is not applicable herein. For the purposes of this appeal, we assume that petitioner's crime involved 'a violation of his oath of office', conviction for which, no less than conviction of a felony, would vacate his judicial office.

We come then to the question as to whether the office of petitioner was vacated on June 19, 1962 or July 20, 1962, the respective dates of the application for retirement and the retirement. Both of these dates were after the verdict of the jury in the Federal court, but before the judgment of sentences on August 2, 1962. The resolution of the question thus posed depends upon whether the term 'conviction' in the context of Section 30 of the Public Officers Law is to be construed as including not only a verdict or plea of guilty but also a judgment thereon by the Court.

As was well stated in Matter of Jones v. Kelly, 9 A.D.2d 395, 397, 194 N.Y.S.2d 585, 586: 'For scores of years courts have wrestled with the problem of the meaning of the word 'conviction". Many of the cases are reviewed in Matter of Jones and the conclusion is reached (9 A.D.2d p. 399, 194 N.Y.S.2d p. 588) that 'in the search for the meaning of the word 'conviction' or the phrase 'judgment of conviction' there is no fixed significance to them and courts are free to look for the legislative intent.'

While the word 'conviction' may be ambiguous (Matter of Lewis v. Carter, 220 N.Y. 8, 16, 115 N.E. 19, 21), there seems to be a guiding principle that emerges from the cases, and that is that where disabilities disqualifications or forfeitures are to follow from a 'conviction' there is no 'conviction' in the eyes of the law unless a sentence is imposed or pronounced and a judgment of conviction entered thereon. (For decisions in this and other states, see Annos.: 79 A.L.R.2d 866-873; 71 A.L.R.2d 593-605; 36 A.L.R.2d 1238-1241; 30 Col.L.Rev. 1045-1050.)

In the leading case of People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 18 L.R.A., N.S., 684, it was held that the word 'convicted' as then used in the Constitution of the State of New York (directing that the Legislature enact laws excluding from the right to suffrage all persons convicted of bribery or of any infamous crime), and the word 'convicted' as incorporated in the legislation enacted pursuant to the Constitutional direction, must be construed as implying a judgment based on a verdict of guilty. In that case it was held that a person, against whom sentence had been suspended after verdict, had not been 'convicted' within the meaning of the Constitution or the statutes enacted in pursuance thereof. The Court, 192 N.Y. at pp. 449-450, 85 N.E. at p. 674, 18 L.R.A.,N.S., 684 quoted with approval the language of the dissenting opinion of Mr. Justice Clarke in the Appellate Division that 'where disabilities, disqualifications, and forfeitures are to follow upon a conviction, in the eye of the law, it is that condition which is evidenced by sentence and judgment, * * *'.

Some confusion has arisen in the cases as to whether suspension of sentence, as was done in People v. Fabian, supra, constitutes a judgment of the Court which finalizes a conviction. In fact, most of the cases relied on by respondent involve situations where after a verdict or plea of guilty, sentence was suspended and the defendant placed on probation. Matter of Robinson v. Board of Regents of University of State of New York, 4 A.D.2d 359, 164 N.Y.S.2d 863 leave to appeal den., 3 N.Y.2d 708, 166 N.Y.S.2d LIX, 145 N.E.2d 386, raised the question as to whether a license to practice medicine had properly been revoked pursuant to Section 6514 of the Education Law which provided for the revocation of the license of a physician who had been 'convicted of a felony'. There the...