MATTER OF P—C-
In DEPORTATION Proceedings
A-10172681
Decided by Board June 1, 1960
Deportability—Section 241(a)(11)—Conviction in New York for possession of
narcotics—Nature of drug ascertained from police affidavit and laboratory
report.
Conviction in New York for possession of unspecified narcotic drug supports
deportability under section 241(a) (11) of act where police officer's affidavit
and laboratory report disclose that drug in question was heroin. Under
rules of the New York Code of Criminal Procedure police affidavit and laboratory report were part of pleading on which respondent was tried and are
considered part of record of conviction.
CHARGE :
Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)3—Convicted
of illicit possession of narcotic drugs (section 3305, Public Health
Law of New York).
BEFORE THE BOARD
Discussion: The examining officer appeals from an order entered
by the special inquiry officer on January 29, 1960, terminating the
above-captioned proceeding. A memorandum of law urging the
respondent's deportation has been submitted by the examining officer. No exceptions have been filed by the respondent.
An order to show cause was personally served upon the respondent on January 7, 1960. The order charges in substance that the
respondent is a native and citizen of Cuba who last entered the
United States through the port of Miami, Florida, on June 24, 1955,
and that he was convicted in the Court of Special Sessionc of New
York City on November 4, 1959, of the crime of unlawfully possessing "a certain narcotic drug."
The deportation hearing was conducted in the respondent's absence pursuant to the authority provided by section 242(b) of the
Immigration and Nationality Act (8 1252(b)). There is
evidence of record that due notice of the hearing was served upon
the respondent on two occasions and that he failed to appear foi
the hearing.
670
klienage and the respondent's conviction of the crime of unlawlly possessing a narcotic drug in violation of section 3305 of the
iblic Health Law of New York I is established by the evidence of
cord. The information accusing the respondent of unlawfully
)ssessing a narcotic drug does not designate the particular nar-
)tic drug found in the respondent's possession. However, a sworn
ffidavit executed by the arresting officer, a court report by the same
, fficer and a Police Laboratory Analysis Report establish that the
.'esponcient was in possession of "heroin" when he was arrested. The
hree documents are before us as a part of the court record on file
in the clerk's office, Court of Special Sessions, New York County,
New York, Docket No. 1S272-1959.
The special inquiry officer terminates the proceeding under the
rule set forth in the case of Hoy v. Mendoza-Rivera, 267 F.2d 451
(C.C.A. 9, 1959). The Circuit Court of Appeals ruled in the
Mendoza case (supra) that insofar as marijuana is involved, deportability under section 241(a) (11) of the Immigration and Nationality Act (S U.S.C. 1251(a) (11)) depends upon a conviction
for possession for the purpose of manufacture, production, sale, etc.,
of the said drug. The special inquiry officer reasons that inasmuch
as a specific narcotic drug is not designated either in the New York
statute or the information accusing the respondent, we cannot go
behind the information and supply the deficiency from supplementary court documents furnished as a part of the court record.
The information merely charges that the respondent "unlawfully
did possess and have control of a certain narcotic, drug."
The examining officer urges that the supporting documents attached to the information are as much a part of the record of the
respondent's conviction as is the information filed against him by
the District Attorney on September 1, 1959. She maintains that
since the affidavit executed by the arresting officer and the supporting laboratory report both specify "heroin" as the drug possessed
by the respondent and that since these documents were received by
the court prior to the respondent's plea of "guilty," the case is not
controlled by the 111emdo2a rule (supra) because there is nothing in
the record of conviction to show that the drug possessed was found
to be marijuana.
The issue before us is whether in this particular case the affidavit
and the police laboratory report may be. considered in arriving at a
determination of the narcotic drug involved in the respondent's
conviction. We are of the opinion that certain provisions of the
' Section 3305, New York Public Health Law, reads as follows :
"It shall be unlawful for any person to manufacture, possess, have under
his control, sell, prescribe, administer, dispense or compound any narcotic drug,
except as authorized in this article."
New York Code of Criminal Procedure governing the prosecution
of criminal cases in the City of New York permit the consideration
of the documents in question for this purpose. Furthermore, interpretations of these provisions establish to our satisfaction that the
affidavit and the laboratory report were before the Court of Special
Sessions as a part of the pleading on which the respondent was
tried.
Section 742 of the New York Code of Criminal Procedure provides, inter alia, "All criminal actions in the Courts of Special
Sessions in the City of New York must be prosecuted by information 2 made by the District Attorney, on returns filed pursuant to
section 221 (Code of Criminal Procedure) … ." Section 221 of
the Criminal Code provides in substance, inter alia, that whenever a
magistrate has held a defendant to answer he must within five days
make a return of "the warrant, if any, the depositions, the statement of the defendant, if he has made one, and all undertakings of
bail, or for the appearance of witnesses, taken by him." The District Attorney is required to file with the clerk of the Court of
Special Sessions in New York City all papers returned to him by
the magistrate including "those upon which informations are based
with the informations …" (see section 743(3), New York Code
of Criminal Procedure). (Emphasis supplied.)
The issue of whether the returns of a magistrate are a part of the
information filed by the District Attorney was before the Court of
Special Sessions for New York City in the case of People v. Reppin,
126 N.Y.S. 169 (Court of Special Sessions, First Division, New
York City, 1910). The defendant, Reppin, when arraigned before
a city magistrate was charged as a first offender. Thereafter, the
District Attorney for the County of New York filed an information
charging the defendant as a second offender. The defendant,
Reppin, challenged the sufficiency of the information in a motion to
dismiss The court held that the defendant could only be tried on
the charge for which the magistrate held him as shown in the returns of the, magistrate and that the pleading of second offender in
the information would be considered surplusage.
The court in its opinion said: "The papers returned by the
magistrate and attached to the information as required by statute
(citing sections 221 and 743, Code of Criminal Procedure, New
York, supra) show that the defendant waived examination before
the magistrate and was held for trial in this court (as a first
offender) …. A criminal action is begun as soon as information,
is laid before the magistrate …. The information of the District
3 Section 145 of the New York Code of Criminal Procedure defines an Information as "the allegation made to a magistrate that a person has been
guilty of some designated crime." (Emphasis supplied.)
672
Attorney unlike an indictment does not initiate the action. Its filing
is merely a step in the prosecution. The magistrate … certifies
that he holds the defendant to answer for a specific crime, returns
the papers in the ease to the District Attorney and this court is
supposed to try the defendant for the offense for which he has been
held (by the magistrate) … there is but one offense charged in the
papers returned." (Emphasis supplied.)
A variance between the charge set forth in an information filed by
the District Attorney of New York City and the returns of a magistrate attached thereto was attacked in the case of People v. Streep,
126 N.Y.S. 172, Court of Special Sessions, First Division, New York
City, 1910. The court in holding for the defendant said: "This
court has consistently held, since the introduction of a carefully
prepared information as the trial pleading, that the charge must
either be the identical one stated in the magistrate's complaint or
fairly disclosed in the examination and proceedings before him."
The New York Supreme Court, Appellate Division, held in the
case of People v. Ash, 60 N.Y.S. 436, that appeals from the Courts
of Special Session for New York City are governed by specific provisions of the Code of Criminal Procedure (sections 741, 744, 750,
751) and that the record upon which the case is to be heard in the
appellate tribunal consists of "the papers instituting the proceeding
(information and magistrate's return), the judgment of conviction,
the evidence upon which it• was based, when necessary to present
the question sought to be reviewed, … the notice of appeal and a
proper certificate by the clerk …." (Emphasis supplied.)
The defendant in the case of People v. Sehildliawo,
186 N.Y.S. 2d
68 (Court of Special Sessions, New York City, Appellate Division,
1959), appealed from a judgment of conviction of the Magistrates
Court, Borough of Manhattan, Municipal Term, urging, int er alia,
that the Magistrates Court had no jurisdiction of the subject matter
or defendant. The court in holding that the Magistrates Court, did
acquire jurisdiction of the defendant said: "The warrant on which
the defendant was arrested was issued by the magistrate on an information sworn to by Inspector C , which was complete and
served the purpose of an information and deposition. The information and deposition may be blended in (nee instrument * + it is
sufficient if the facts sworn to are adequate." (Emphasis supplied.)
We conclude on the basis of the foregoing statutes and the authority cited that the affidavit and laboratory report attached to
the information here under consideration were a part of the pleading on which the respondent was tried. As a part of the pleading
before the Court of Special Sessions for New York City it is proper
to consider them in arriving at a determination of the narcotic drug
involved in the respondent's conviction. Our conclusion in this
673
regard does not amount to going behind the record of conviction
because by statute and interpretation the supporting documents may
be considered in this particular instance as a part of the record of
conviction.
Our primary concern is with fair and impartial administration of
the immigration laws to the end that justice may previl. Accordingly, if the supporting affidavits attached to the information had
averred that marijuana was involved in the respondent's conviction,
then he would not be deportable under the rule set forth in the
21 fendoz,a, ease (6wpra). Our decision is in line with the Attorney
General's opinion in Matter of L , 5 I. & N. Dec. 169, 172, August 11, 1953, wherein he said that "the facts must be examined upon
which the violation of law is based" in determining an alien's excludability because of conviction of a law regulating traffic in
narcotic drugs.
The appeal of the examining officer will be sustained. An appropriate order will be entered.
Order: It is directed that the order entered by the special inquiry officer on January 29, 1960, be and the same is hereby withdrawn.
It is further ordered that the a'.ien be deported pursuant to law
on the charge stated in the order to show cause.
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