A-4802875
Decided by Central Office October 10, 1947
"Sentenced to imprisonment" — Section 19, Immigration Act of February 5, 1917 — Commitment to Defective Delinquents Institution.
An alien is not deemed "sentenced to imprisonment" within the meaning of the provisions of section 19 of the Immigration Act of 1917, where after conviction of a crime, he is adjudged mentally defective and ordered to be committed to the Institution for Male Defective Delinquents at Napanoch, N.Y., under the provisions of section 438 of the Correction Laws of the State of New York (Ch. 459, L. 1931), it being noted that the courts of that State held that such commitment (to Napanoch or Woodbourne) is not meted out as punishment and is not considered as a sentence to imprisonment.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once; robbery, third degree, unarmed; robbery, second degree, armed.
Discussion: This record relates to a 39-year-old male, a native of Russia and last a citizen of Lithuania whose only entry into the United States occurred at the port of New York on December 13, 1911 aboard the S.S. Noordam. He has resided continuously in the United States since the date of his entry.
The respondent was convicted on December 21, 1927 in the Court of General Sessions, County of New York, upon his plea of guilty to the crime of robbery, second degree, armed, committed by him December 10, 1927, and on January 9, 1928 was sentenced to the State prison for a term of not less than 2 nor more than 4 years which sentence was increased by not less than 5 nor more than 10 years by reason of his being armed with a pistol at the time of the crime. The alien identified this record of conviction as relating to him. He testified that he actually served about 9 months of this sentence at the New York Reformatory at Orangeburg, N.Y. The crime of robbery is one involving moral turpitude.
The respondent was convicted on June 12, 1934, in the County Court, County of Kings, N.Y., upon his plea of guilty to the crime of robbery, third degree, unarmed, committed by him February 23, 1934. Following his conviction, a proceeding was instituted on June 12, 1934, pursuant to section 438 of the Correction Law of the State of New York (ch. 459, L. 1931) to inquire into the alleged mental defectiveness of the respondent. On the basis of a certificate issued by two qualified examiners and being satisfied that the defendant was over the age of 16 years, a mental defective, and a proper subject for custody and treatment in an institution for the mentally defective, the court ordered that the alien be adjudged mentally defective and that he be committed to the Institution for Male Defective Delinquents at Napanoch, there to be dealt with according to law. This order of commitment was dated June 18, 1934. The record indicates that the respondent was an inmate at Napanoch for a period of 5 years at which time he was transferred to another State institution for the mental defectives at Woodbourne, N.Y., where he remained an additional 5 years. He was released on parole in 1944, and is still on parole reporting regularly to the parole officer.
The courts of the State of New York have held that commitment to an institution for the mentally defective such as Napanoch and Woodbourne does not constitute a sentence to imprisonment. People v. Eckert, 179 Misc. 181, 39 N.Y.S. 2d, 79 (1942); People v. Randazzo, 179 Misc. 127, 37 N.Y.S. 2d, 815 (1942); People ex rel. Meyers v. Lawes, 242 App. Div. 647, 272 N.Y.S. (1934). The courts of the State of New York have likewise held that a commitment to an institution for the mentally defective following a conviction of a crime does not constitute punishment for the crime, Vona v. State, 54 N.Y.S. 2d, 453 (1945).
The cases cited in counsel's brief to the effect that one committed to an institution for male defective delinquents is not considered a second offender in the event of a subsequent criminal conviction have been overruled. People ex rel. Mucciolo v. Snyder, 269 App. Div. 985 (1945) aff'd 295 N.Y. 866, 67 N.E. 2d 263 (1946); People ex rel. Aiello v. Warden, 270 App. Div. 1033, 63 N.Y.S. 2d, 452 (1946). Nevertheless, while a convicted person committed to an institution for mental defective delinquents is considered a second offender in the event of a subsequent conviction within the purview of section 1941 of the Penal Laws of the State of New York, this is so because section 1941 refers to "conviction" and not to sentence to imprisonment. Thus, a committed felon has been convicted of a crime although he was not sentenced to imprisonment when he was committed to the mental institution. It must be concluded, therefore, that with reference to the offense of robbery, third degree, unarmed, of which the respondent was convicted and which forms one of the offenses supporting the charge set forth in the warrant of arrest, there was no sentence to imprisonment within the meaning of that term as contained in section 19 of the Immigration Act of 1917.
The charge stated in the warrant of arrest cannot be sustained. The evidence of record fails to establish that the respondent is subject to deportation on any other deportable ground. The warrant of arrest should be canceled and the proceedings thereunder terminated.
Recommendation: It is recommended that the warrant of arrest be canceled, and the proceedings thereunder terminated.
So ordered.