56065/307
Decided by the Board July 28, 1943
Crime involving moral turpitude — Compulsory prostitution of women — Assault, third degree (New York).
1. Attempted compulsory prostitution of women in violation of section 2460 of the New York penal law is a crime involving moral turpitude.
2. Assault in the third degree as defined by section 244, subdivision 1, of the New York penal law is not a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1917 — Convicted of crime involving moral turpitude within 5 years after entry — attempted compulsory prostitution of women.
Lodged: Act of 1917 — Sentenced to imprisonment more than once for crimes involving moral turpitude — attempted compulsory prostitution of women, and assault, third degree.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the warrant charge above specified. The Central Office concurs.
DISCUSSION: The respondent is a native and citizen of Italy, 49 years of age, married. He last entered the United States on June 22, 1920, at Boston, Mass. On September 29, 1924, he was indicted in the county court for the County of Kings, State of New York, for the crime of compulsory prostitution of women, committed on July 25, 1924. On December 8, 1924, he was convicted on his plea of guilty of the crime of attempted compulsory prostitution of women and sentenced to imprisonment in the New York County Penitentiary for an indeterminate term. The pertinent portion of the indictment reads:
The defendant, on July 25, 1924, placed A---- V---- E----, a female, in the charge and custody of one whose name is to the grand jury unknown, for immoral purposes, and in a house of prostitution, with intent that she should live a life of prostitution, and compelled, induced, enticed, and procured her to reside with one whose name is to the grand jury unknown, for immoral purposes, and for the purpose of prostitution, and compelled, induced, enticed, and procured her to enter and reside in a house of prostitution, and to live a life of prostitution.
Section 2460 of the New York penal law defines the crime of compulsory prostitution of women in eight subdivisions. It appears that the respondent was indicted and convicted of a violation of subdivision 2, which reads:
2. Any person who shall place any female in the charge or custody of any other person for immoral purposes or in a house of prostitution or elsewhere with intent that she shall live a life of prostitution; or any person who shall compel or shall induce, entice, or procure, or attempt to induce, entice, procure, or compel any female to reside with him or with any other person for immoral purposes, or for the purposes of prostitution or shall compel or attempt to induce, entice, procure, or compel any such female to reside in a house of prostitution or compel or attempt to induce, entice, procure, or compel her to live a life of prostitution shall be guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for not less than two years nor more than twenty years and by a fine not exceeding five thousand dollars.
It should first be observed that the respondent was sentenced to imprisonment for a term of 1 year or more ( United States ex rel. Paladino v. Commissioner of Immigration, 43 F. 2d 821 (C.C.A. 2, 1930). The purpose of section 2460 is to reach the systemization of prostitution on a commercial basis. An indictment under section 2 will not lie when the acts complained of are merely immoral and there is no element of commercialism ( People v. Odierno, 166 Misc. 108; 2 N.Y.S. 2d 99 (1938). We think it is clear that the crime defined by subdivision 2 involves moral turpitude. The fact that the respondent was convicted of attempted compulsory prostitution of women is of no significance. There is no distinction with respect to moral turpitude between the commission of a criminal act and an attempt to commit it ( United States ex rel. Meyer v. Day, 54 F. 2d 336, 337 (C.C.A. 2 (1931)). We conclude that the charge contained in the warrant of arrest is sustained.
There the court held that an indeterminate sentence to a penitentiary under the New York Statutes is to be regarded as a sentence for the possible maximum period of confinement of 3 years.
Relating to the lodged charge, the evidence establishes that the respondent was indicted on October 1, 1940, in the county court for the County of Bronx, State of New York, for the crime of assault, third degree, committed on September 23, 1940. On November 13, 1940, the respondent was convicted on his plea of guilty and committed to the New York County Penitentiary. The indictment in the case alleged that the respondent "with force and arms * * * unlawfully and wrongfully did strike, bruise, and wound, against the form of the statute in such case made and provided * * *." The indictment charged a violation of subdivision 1 of section 244 of the New York penal law, which provides that:
A person who:
1. Commits an assault, or an assault and battery, not such as is specified in sections 240 and 242;
Is guilty of assault in the third degree.
Assault in the third degree is punishable by imprisonment for not more than 1 year. As we have heretofore observed, an indeterminate sentence is to be considered as a sentence for the possible maximum period of confinement. The Central Office states that the foregoing crime does not involve moral turpitude. In this connection we refer to United States ex rel. Morlacci v. Smith, 8 F. 2d 663 (D.C., N.Y. 1925), where it was said that a mere assault and battery does not involve moral turpitude. We agree with the opinion of the Central Office. Consequently, we must conclude that the respondent has not been sentenced to imprisonment more than once because of convictions of crimes involving moral turpitude.
In People ex rel. Starvis v. Rogers, 170 Misc. 609, 10 N.Y.S. 2d 722, it was held that where a wife threw missiles at her husband for kissing another woman, but hit the other woman, the wife was guilty of third-degree assault, even in the absence of a specific intent to assault the other woman.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent last entered the United States on June 22, 1920;
(3) That on September 29, 1924, the respondent was indicted in the county court for the County of Kings, State of New York, for the crime of compulsory prostitution of women in violation of section 2460, subdivision 2, of the New York penal laws, said crime having been committed on July 25, 1924;
(4) That the respondent was convicted on his plea of guilty of the crime of attempted compulsory prostitution of women;
(5) That for the foregoing offense the respondent was sentenced to imprisonment for a term of more than 1 year;
(6) That on November 13, 1940, the respondent was convicted in the county court, County of Bronx, State of New York, on his plea of guilty of the crime of assault, third degree, said crime having been committed on September 23, 1940;
(7) That for the foregoing offense the respondent was sentenced to imprisonment for a term of 1 year or more.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation in that on or after May 1, 1917, he had been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: attempted compulsory prostitution of women;
(2) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation in that on or after May 1, 1917, he had been sentenced more than once to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed after entry, to wit: attempted compulsory prostitution of women, and assault, third degree;
(3) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Italy at Government expense.
OTHER FACTORS: The respondent is deportable under the provisions of section 19 (d) of the Immigration Act of 1917, as amended. Consequently he is not eligible for the discretionary relief provided by section 19 (c) of that act. The respondent has a wife living in Italy whom he has abandoned. There are two adult children, issue of that marriage, residing in Italy. After he came to the United States he contracted a bigamous marriage, which was subsequently annulled. There are three minor children born in the United States, issue of the bigamous marriage. An independent investigation conducted by an officer of the Immigration and Naturalization Service indicates that two of the respondent's children are being reared by a charitable institution, and that the third is said to be living with her maternal grandmother. The record reveals a long criminal history.
ORDER: It is ordered that the alien be deported to Italy at Government expense on the charge contained in the warrant of arrest.