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 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

2 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.)

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 case 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. Schildhaus, 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, inter 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 one 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

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 prevail. 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 Mendoza case (supra). 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 alien be deported pursuant to law on the charge stated in the order to show cause.

MATTER OF SS. YARMOUTH

In FINE Proceedings

MIA-10/61.210

Decided by Board June 6, 1960

Fine Section 273(d) of 1952 act-Not imposed where only evidence of stowaway's presence on particular vessel is own statement.

Violation of section 273 (d) not established where sole evidence that alien arrived aboard named vessel was his own statement which was contradicted by affidavits of vessel's master and crew members and which was otherwise questionable because of alien's lengthy criminal record.

BASIS FOR FINE: Act of 1952-Section 273 (d) [8 U.S.C. 1323].

BEFORE THE BOARD

Discussion: This appeal is directed to an administrative penalty of $1,000 which the District Director at Miami, Florida, has ordered imposed on the Eastern Shipping Company, owners and/or agents of the above-named vessel which arrived at the port of Miami, Florida, from foreign on August 14, 1959, for failure to detain the alien stowaway G-M- aboard the vessel until he was inspected. The appeal will be sustained and the

by an immigration officer. fine remitted.

The alien stowaway involved, in an affidavit executed before a Service officer after he was arrested ashore at Miami, has stated that he arrived in the United States at that port aboard this vessel, as above. He has claimed that he came here to visit his wife, a United States citizen whom the British government had deported from Nassau about six weeks previously, having received word that she was ill. He has alleged that he attempted to obtain proper documents to enter this country legally but was unable to do so because of a lengthy criminal record, including about 39 convictions of charges ranging from drinking to assault and 10 months' imprisonment. He has asserted that he hid aboard this vessel at Nassau about 4:00 p.m. on August 13, 1959; that he had no trouble getting aboard as he dives for coins for tourists at Nassau; and that coin divers are given the freedom of the ship there. He has averred that, after visiting his wife briefly, he tried to return aboard this vessel to go back to Nassau; that a watchman would

not permit him to board it; that he then told the captain he had stowed away on the trip over; that when he could not produce his passport the captain told him to get off the dock and stay off; and that he then turned himself in to the Service.

The appellant has submitted an affidavit by the vessel's master that it is his practice to have two guards posted in appropriate positions near the ship to keep unauthorized persons from coming aboard while it is in foreign ports; that he did so at Nassau, where this stowaway claimed he boarded the vessel; that "coin divers" are not permitted to board his vessel, contrary to the statement made by the stowaway; and that he did not talk to the stowaway at Miami, as claimed by the latter, but that the port captain there related a similar incident to him around that date. The appellant has also submitted affidavits by officers and members of the crew of this vessel, some of whom are personally acquainted with the stowaway, that they did not see him aboard at any time here involved; that they did not see any stowaways aboard on the trip to the United States here in question; and that they did not hear anybody mention that there was a stowaway aboard.

Liability to fine here is predicated solely on the stowaway's statement, which is not persuasive evidence that he did arrive in the United States as such aboard this vessel. It has been contradicted by affidavits submitted in support of the appeal, as well as being questionable in view of the stowaway's admitted lengthy criminal record. The Service made no effort to substantiate it by inspection of the boat and by interrogating him as to its description, to be followed by an actual description of the boat.

Briefly, in circumstances such as those outlined above, the burden is on the Service to establish the violation. This it has not done. Accordingly, we will sustain the appeal.

Order: It is ordered that the appeal be sustained and that fine be not imposed.