Appeal from the United States District Court for the Eastern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge. HONORABLE J. JOSEPH SMITH, HONORABLE WILLIAM H. TIMBERS, Circuit Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is vacated and the cause is remanded for a determination of the effect of N.Y. Public Officers Law § 30(1)(e).
1. Under N.Y. Public Officers Law § 30(1)(e), an office becomes vacant upon the incumbent's conviction of a felony. Toro v. Malcolm, 44 N.Y.2d 154, 375 N.E.2d 739, 404 N.Y.S.2d 558, cert. denied, 99 S. Ct. 121 (1978). Since McCoy was a peace officer, see N.Y. Mental Hygiene Law § 13.25, it appears he was a public officer within the meaning of the Public Officers Law. See Toro, supra (corrections officer); Fishbein v. State, 282 App. Div. 600, 125 N.Y.S.2d 845 (1953) (probation officer). Accordingly, if § 30(1)(e) of the Public Officers Law is applicable, McCoy's position became vacant upon his conviction, and the judgment of the district court directing his reinstatement was error.
2. On the record before us, however, we cannot determine whether the provision is in fact applicable to McCoy. For example, the record is silent whether the offense of which McCoy was convicted was a felony under New York law or the equivalent under New Jersey law. See N.Y. Penal Law §§ 265.01(1), 265.02(4); N.J.S.A. §§ 2A: 151-41, 2A:85-6(a). See generally In re Donegan, 282 N.Y. 285, 26 N.E.2d 260 (1940).
3. In view of our disposition of this matter, we need not at this time consider the issues tendered by appellant. No costs.