Kupferman, J. (dissenting). I would affirm.
The issue which divides us is whether the actions of petitioner constituted a crime involving a violation of his oath of office within the meaning of Public Officers Law § 30 (1) (e).
To find that the "oath of office” is not so implicated will prevent summary dismissal, but it will not, as the IAS court made clear, prevent "any other disciplinary or removal proceedings”. (143 Mise 2d 851, 853.)
The oath of office for a police officer is no different than for any other public official. It reads, as follows: " T do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [police officer], according to the best of my ability’ ” (NY Const, art XIII, § 1).
Under section 30 (1) (e) of the Public Officers Law, the office is considered vacant upon the incumbent’s conviction of a felony or a crime involving a violation of his or her "oath of *365office”. In the case of a felony conviction the office is ipso facto rendered vacant, but what lesser crime triggers such action?
Criminal trespass in the second degree, of which petitioner was convicted, could just as well apply to entering a home without a valid warrant in search of contraband (cf, Payton v New York, 445 US 573). Would this be a violation of the officer’s oath of office requiring automatic termination or merely a violation possibly inviting disciplinary proceedings?
A lawyer is automatically disbarred upon conviction of a felony (Judiciary Law § 90 [4]; Matter of Mitchell, 40 NY2d 153; Matter of Boyd, 157 AD2d 136), but if the conviction is not for a felony but for a serious crime, there is generally a hearing on the issue of the appropriate sanction.
The Second Department has recently held, in a 3-2 decision, that a plea to the misdemeanor charge of driving while intoxicated, where an off-duty police officer was in a car accident in which a pedestrian was killed and another injured, is not an oath of office violation (Matter of Sharkey v Police Dept, 179 AD2d 655). The majority in that case found a substantial question regarding proximate cause in relation to the tragic consequences. The minority considered that the vow was faithfully to uphold the State’s law.
In De Paulo v City of Albany (49 NY2d 994), a guilty plea to disorderly conduct by a police officer accused of acts violative of his oath of office was held not to be a basis for automatic termination pursuant to section 30, albeit disorderly conduct is a "violation” and not a "crime” (Penal Law §§ 240.20, 10.00 [3], [6]).
An "oath” is a declaration of conscience and an acknowledgment of responsibility to a deity. (See, Black’s Law Dictionary 1071 [6th ed].) It implicates a high standard of morality.
The President of the United States takes a similar oath to that of a police officer (US Const, art II, § 1, cl 7), as does the Governor of the State, the members of the State Legislature, the Judges of the Court of Appeals and as do we. (See, NY Const, art XIII, § 1.) Were it not for the fact that it has been held that section 30 does not apply to judicial officers (Matter of La Carrubba v Klein, 46 NY2d 1009, affg for reasons stated in majority opn 59 AD2d 99; see, NY Const, art XIII, § 5), would we so readily state that our office would automatically vacate should we be convicted of the misdemeanor of criminal trespass?
The question answers itself.