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O'Neill v. Dep't of State - 47 Misc. 2d 16, 261 N.Y.S.2d 937 (Sup. Ct. 1965)

Rule:

Since the only way (except presidential pardon) provided by the legislature to remove the disabilities imposed by N.Y. Real Prop. Law § 440-a when the statute was enacted was available only to persons who had actually served time in a penal institution, it seems clear that it was not the legislative intent to consider one who received a suspended sentence as having been convicted within the scope of § 440-a. To hold otherwise would mean that the legislature intended that a person that the sentencing court felt could be rehabilitated and did not require imprisonment either as punishment or for the protection of society was forever barred from requesting reinstatement of his occupational license, while an offender whose background made imprisonment necessary could submit a certificate of good conduct and apply for reinstatement as a real estate broker. Such an inequitable result was surely not intended. 

Facts:

Petitioner George F. O'Neill, a real estate broker, was found guilty after a four-month trial by jury of testifying falsely before a Grand Jury in violation of section 1621 of title 18 of the United States Code. Concededly, this would be a felony under New York law. After the jury verdict, the Federal Judge, at the time of sentencing, reviewed O'Neill's background and after indicating that there were mitigating circumstances present suspended the imposition of sentence on all counts and placed him on probation for two years. O'Neill brought a proceeding under N.Y. C.P.L.R. art. 78 to review a determination of respondent Department of State of the State of New York, which revoked his real estate broker's license. The Department found that revocation was mandatory under N.Y. Real Prop. Law § 440-a due to O'Neill’s felony conviction in a federal court.

Issue:

Was O'Neill "convicted" of a felony as provided by N.Y. Real Prop. Law § 440-a?

Answer:

No

Conclusion:

Vacating the revocation of O'Neill’s license, the Court held that the meaning of the word "conviction" was equivocal and could vary, depending upon the legislature's intent. The Court found that the legislature did not intend to consider one who received a suspended sentence as having been convicted within the scope of § 440-a because when § 440-a was enacted, the legislature provided only one way (except presidential pardon) to remove the disabilities imposed by § 440-a and it was available only to persons who had actually served time in prison. To hold otherwise would mean that the legislature intended that a person who the sentencing court felt did not require imprisonment was forever barred from seeking reinstatement of his occupational license, while an offender whose background made imprisonment necessary could submit a certificate of good conduct and apply for reinstatement. The Court also ruled that there was no judgment until a sentence was imposed and determined that the federal courts did not deem a suspension of the imposition of sentence to be a sentence.

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