Matter of Goodalle
| Citation | 12 I&N Dec. 106 |
| Decision Date | 03 March 1967 |
| Docket Number | A-12346941.,Interim Decision Number 1704 |
| Parties | MATTER OF GOODALLE. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case comes forward on appeal from the decision of the special inquiry officer, finding respondent deportable as charged, ineligible for any form of discretionary relief, and ordering him deported to England, the country of designation, with an alternate designation of the British West Indies.
Respondent is a 24-year-old single male alien, a native of Antigua, British West Indies and a subject of Great Britain. He was lawfully admitted to the United States for permanent residence in January 1962, on the basis of a petition for nonquota status by his mother, who is a naturalized citizen of the United States.
On January 15, 1965, respondent was convicted in Bronx County, New York, after trial, of assault in the second degree, committed on or about August 23, 1964. On March 15, 1965, he was sentenced to an indefinite term at the State Reformatory at Elmira, New York. He is still serving that sentence.
Respondent, through counsel, admits the factual allegations in the order to show cause but contests deportability on two grounds. First, it is claimed that the crime of which respondent was convicted did not involve moral turpitude. Second, it is urged that he was not "sentenced to confinement", as that term is used in the law.
The crime of assault in the second degree, in violation of section 242 of the Penal Law of the State of New York, is defined in five ways. The one most closely related to the indictment herein is subdivision (4) of section 242, which relates to a person who:
"willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm."
The indictment charges that respondent and his mother, acting in concert with each other, assaulted the complainant by the use of a knife.
Counsel contends that no knife was ever used and that the weapon actually used was one which neither respondent nor his mother had brought with them; that it was a broken bottle which respondent grabbed from the complainant or one of his group, to prevent the same from being used upon him. Counsel urged that the record of conviction was incomplete because there was no mention of this changed factor; it was then stipulated for the record that if counsel could obtain any evidence or document, under the seal of the clerk of the court, showing the conviction record to be incomplete or incorrect and making the appropriate correction, the same would be accepted in evidence. Such material was not submitted. The record must, therefore, be considered in the light of the charge that a knife was the weapon used. This is not to say that had a broken bottle been used instead of a knife, the character of the crime would have been different. The statute refers not only to a weapon, but to any other instrument or thing likely to produce grievous bodily harm.
As the special inquiry officer pointed out, the Board has ruled, in Matter of Z----, 5 I. & N. Dec. 383, that assault in the second degree as defined in subdivision (4) of section 242 of the New York Penal Law, is a crime involving moral turpitude (cf. citation of authority in body and appendix of decision in Matter of Z----). In a further attempt to rule out the element of moral turpitude, counsel submitted a letter by Justice George Postel, the justice who presided at the trial and sentencing of respondent. In that letter, the Justice stated that in his opinion the assault arose as a result of a drunken brawl and did not involve moral turpitude. However, we may not go beyond the record of conviction in reaching a conclusion as to whether the crime involves moral turpitude (U.S. ex rel. Meyer v. Day, 54 F.2d 336, C.A. 2, 1931; U.S. ex rel. Robinson v. Day, 51 F.2d 1022, C.A. 2, 1931), and the opinion of the Justice on the question of moral turpitude is not a part of that record.
The second facet of the defense is that respondent was not "sentenced to confinement", as that term is used in section 241(a)(4), because he was sentenced to a reformatory, rather than a state prison, and the purpose of the sentence was for rehabilitation rather than punishment. The record of conviction is not very explicit on the matter of the sentence. At the right of the cover or face sheet of the court record (last page of Exhibit 3) there is the following notation:
.
In the letter from Justice Postel referred to above there is the statement that respondent was sentenced:
"to an indefinite term to Elmira Reformatory, pursuant to section 288 of the Correction Law and section 2184-a of the Penal Law, following his conviction for an assault in the second degree."
However, since section 2184-a of the Penal Law by its terms relates to male persons between the ages of 16 and 21 years, and respondent, according to the record, was over 22 when the crime was committeed, it appears more likely that the sentencing was under section 2185, which states:
Reformatory Term for Males between 21 and 30 Years of Age.
A male between the ages of 21 and 30, convicted of a felony, who has not heretofore been convicted of a crime punishable by imprisonment in a state prison, may, in the discretion of the trial court, be sentenced to imprisonment in the Elmira Reformatory, to be there confined under the provisions of law relating to reformatories. The term of imprisonment of any person sentenced hereunder shall be known as a reformatory term and shall be terminated by the board of parole in the executive department, but such term shall not exceed five years.
The related section 288 of the Correction Law provides:
Sentence to a Reformatory.
Any person who is convicted of an offense punishable by a reformatory term, who, upon such conviction is sentenced in accordance with the provisions of section twenty-one eight-four-a, twenty-one eighty-five, or section twenty-one eighty-seven-a of the penal law, and who is committed or transferred to a reformatory, shall be imprisoned according to this article. The term of imprisonment of any person so convicted and sentenced shall be...
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Commonwealth v. Cano
...involving moral turpitude based on definition of dangerous weapon and evil intent shown by use of dangerous weapon); Matter of Goodalle, 12 I. & N. Dec. 106, 107 (1967) (assault by use of a knife is a crime involving moral turpitude). Cf. Shaw v. Robbins, 338 F.Supp. 756, 758 (D.Me.1972) (i......