Matter of Beato
| Decision Date | 07 October 1964 |
| Docket Number | A-12097094,Interim Decision Number 1397 |
| Citation | 10 I&N Dec. 730 |
| Parties | MATTER OF BEATO In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent is a 32 year old married male alien, a native and citizen of Italy who entered the United States at the port of New York on November 19, 1960, at which time he was admitted for permanent residence. On November 15, 1963, he was convicted in the County Court, Nassau County, New York, of attempted assault, second degree and was sentenced to Sing Sing State Prison for a term of one year and three months to two years and six months, but execution of the sentence was suspended and he was placed on probation.
Deportability is predicated on section 241(a)(4) of the Immigration and Nationality Act on the ground that the respondent was convicted of a crime involving moral turpitude committed within five years after entry and sentenced to confinement in a prison for a year or more. The respondent urges that he is not subject to deportation as it cannot be determined from the record whether he was convicted of a crime involving moral turpitude.
To decide whether the crime of which the respondent stands convicted involves moral turpitude reference must be had to the record of conviction which includes the indictment (information or complaint) plea, verdict and sentence. United States ex rel. Meyer v. Day, 54 F. 2d 336 (C.C.A. 2, 1931); United States ex rel. Robinson v. Day, 54 F. 2d 1022 (C.C.A. 2, 1931); United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757 (C.C.A. 2, 1933).
The record reflects that on September 18, 1952, the respondent was indicted by the grand jury of Nassau County, New York, on four counts relating to his alleged misconduct on July 30, 1962, with an eight year old girl as follows:
First count—carnal abuse of a female child in violation of section 483-A of of the Penal Law of New York
Second count—attempted rape, first degree
Third count—assault in the second degree with intent to commit the crimes and felonies of carnal abuse and rape
Fourth count—endangering the life, health and morals of a child, by placing his hands, fingers, and private parts in contact with the private parts of the girl.
The indictment concludes as follows:
All of the acts and transactions alleged in each of the several counts of this indictment are crimes of a similar nature, are connected together and form part of a common scheme and plan.
On October 1, 1962, the respondent pleaded not guilty to the indictment but subsequently on October 15, 1963, withdrew his plea of not guilty and pled guilty to attempted assault, second degree, in satisfaction of the indictment.
Section 242 of the New York Penal Law, defining the crime of assault in the second degree, provides as follows:
Is guilty of assault in the second degree.
As the statute is divisible, conviction thereunder may or may not involve moral turpitude, Matter of Z----, 5 I. & N. Dec. 383 (BIA, 1953). If the basic crime involves moral turpitude then the attempt to commit that crime likewise involves moral turpitude, United States ex rel. Meyer v. Day, supra.
The third count of the indictment, which is the only one involving assault, alleges an assault with intent to commit the felonies of carnal abuse and rape. The phraseology of this count clearly brings it within the purview of the fifth subdivision of section 242. As the crimes of carnal abuse and rape clearly involve moral turpitude, an assault with intent to commit such crimes involves moral turpitude. Hence, had the respondent pleaded guilty to the third count of the indictment, he unquestionably would fall within the scope of section 241(a)(4) of the Immigration and Nationality Act. The fact that he pleaded guilty to attempted assault, second degree is not deemed to alter this conclusion. That plea was not made in a vacuum, but must be considered with relation to the indictment, as is indicated by the recitals in the conviction record that such plea was "in satisfaction of the indictment."
Under the criminal procedure of New York, an indictment is essential to the prosecution of a crime in a county court and to the acceptance of a plea with reference thereto, Code of Criminal Procedures, section 4, 222, 444, 445. Hence, there cannot be a plea or a conviction of any crime in such court without an indictment. As a matter of law, a criminal judgment must be supported by an indictment charging the crime adjudged or a higher degree thereof, or a crime necessarily involving or included in the crime for which the sentence is imposed, Matter of W----, 4 I. & N. Dec. 241, at 245 (BIA, 1951). The effect of the respondent's guilty plea to attempted assault in the second degree was to reduce the maximum punishment to which he was subject, (New York Penal Law, sec. 261, subd. 2). In other respects he is considered as having pleaded to the basic crime.
In United States ex rel. Valenti v. Karnuth, 1 F. Supp 370 (U.S. D.C., N.D., N.Y., 1932) an alien charged in the indictment with assault in the first degree pled guilty to assault in the second degree. In holding that the allegations in the indictment pertinent to the crime to which the guilty plea was entered could properly be considered, the court stated:
When confronted with the necessity of deciding whether the named crime to which the relator pleaded guilty involves moral turpitude, this court may, in reaching a decision, when the question is doubtful, look behind the plea to the charge or indictment upon which the plea was made for the purpose of determining the question.
Following this rationale it has been held that where an indictment charges a particular offense and there is a plea of guilty to a lesser offense the allegations pertaining only to the greater offense are disregarded and the remaining allegations to which the plea has been taken are considered to determine whether there has been a conviction of a crime involving moral turpitude. Thus where the indictment alleged manslaughter in the first degree based upon the use of an instrument to procure an abortion resulting in the death of a woman and the alien pled guilty to assault in the second degree it was concluded that the conviction was under section 242, subd. 5, of the New York Penal Law for assault in the second degree with intent to commit the felony of abortion and that the crime involved moral turpitude, Matter of M----, 2 I. & N. Dec. 525 (BIA, 1946).
Similarly in Matter of W----, 4 I. & N. Dec. 241 (BIA, 1951) the Board held that where the respondent was convicted of attempted unlawful entry and unlawful entry under indictments charging attempted burglary in the third degree and burglary in the third degree with intent to commit larceny, the respondent was, in fact, convicted of attempted entry and entry with intent to commit larceny and was therefore convicted of crimes involving moral turpitude.
In the...
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