Per Curiam.
The applicant, certified as having passed the Bar examination, has filed for admission to the Bar of _ this State. The Committee on Character and Fitness has reported that the [253]*253applicant possesses the requisite character and fitness for an attorney at law, “ notwithstanding the admission of the applicant to being a homosexual and having engaged in homosexual acts. ” The committee withheld a further recommendation, however, because of other facts appearing in the application.
The applicant was admitted to the Bar of the State of Illinois on June 18,1951. He has never practiced in that State. He was admitted to the Bar of the State of Florida on April 24, 1953 and engaged in active practice there. He was disbarred by the Supreme Court of Florida on September 6, 1957, based on charges filed by the Florida Bar (State ex rel. Florida Bar v. Kimball, 96 So. 2d 825 [Fla.]). He has not sought reinstatement to the Florida Bar.
It is the applicant’s disbarment and the charges leading to the disbarment which concern us. The Committee on Character and Fitness made no further recommendation in this case because it believed that Matter of Peters (250 N. Y. 595, affg. 221 App. Div. 607) and subdivision 5 of section 90 of the Judiciary Law enunciated public policy that one disbarred in a sister State may not be admitted to the practice of law in this State without first having been readmitted in the sister State. We do not read either Matter of Peters or this statute to restrict so narrowly the power to admit to the Bar of New York. We think, rather, that the fact of disbarment and the charges underlying the disbarment must be considered together with all the other circumstances, so that the total background of the applicant may be viewed to determine his character and fitness.
In Matter of Peters the Court of Appeals merely answered in the negative a certified question reading as follows (250 N. Y. 595, 596): “Is applicant entitled as a matter of right to admission to the Bar of this State, in view of his claim that his disbarment in another State was void, and of his having been permitted to take, and having passed the bar examination in this State,-, after notice to the State Board of Law Examiners of his claim, and in view of the report of the Committee on Character and Fitness, submitting the matter to the court without recommendation, and finding good general character apart from the implication flowing from such disbarment? ” The Appellate Division, Third Department, in denying the motion in question, which was by Peters for relief relating to his application for admission to the Bar, had stated that the validity of the disbarment in Alabama was assumed and that it was a “badge of unfitness” (Matter of Peters, 221 App. Div. 606, 609, supra). But the court further criticized the applicant for his diatribe against the judges [254]*254in Alabama who had disbarred him, saying (p. 609): “We now say with finality what we have said in effect repeatedly to. this applicant: we will not give countenance to his tirade against the courts of Alabama by even considering the validity of their disbarment judgment in his case. ’ ’
Hence, in our opinion, Matter of Peters does not foreclose the exercise of judgment by this court in determining the character and fitness of an applicant, regardless of his disbarment in another State. Nor do we think that the recent amendment to subdivision 5 of section 90 of the Judiciary Law (L. 1969, ch. 743, eff. Sept. 1,1969) removes our power.1 It is limited, in our view,, to an applicant who was disbarred in another State for the commission of a crime and has since been pardoned; the amendment requires only that the pardon be accompanied by readmission in the other State before the applicant may be considered for readmission here;
We believe that we are not bound to give full faith and credit to the Florida judgment of disbarment in the constitutional sense (U. S. Const., art. IV, § 1; cf. Florida Bar v. Wilkes, 179 So. 2d 193 [Fla.]; Ann. 173 A. L. R. 298; 7 Am. Jur. 2d, Attorneys at Law, § 20). Reasons of policy regarded as significant in one Státe in their effect on the conduct of attorneys may not prevail in another State, because of differing conditions; the' sensitive office of an attorney must be continually subject to the control of the courts in which the attorney, practices or seeks admission. The Federal courts do not automatically disbar an attorney because he is disbarred by a State court (Theard v. United States, 354 U. S. 278, 281-282; Matter of Rhodes, 370 F. 2d 411, cert. den. 386 U. S. 999). The rule which emerges from these and other cases is that high respect for the foreign determination of guilt must be accorded by the court to which the disbarred attorney applies for admission, but that the local court will make an independent judgment of the effect of that determination on the character and fitness of the applicant (see, also, Matter of McCue, 211 Cal. 57; State Bd. of Law Examiners v. Brown, 53 Wyo. 42). Where we find that we would have disbarred an attorney on the same facts, the applicant should be required to be readmitted in the first State before he may be admitted by us to the Bar in our State.
[255]*255We turn, then, to the grounds upon which the Florida disbarment was effectuated. The applicant was charged arid found guilty of behavior contrary to good morals and in violation of the laws of the State. We have reviewed the record and find that he had been accused of committing sodomy in 1955 on a public beach at night. He had been arrested previously by the police of Orlando, Florida, for the offense (Fla. Stat. Ann., § 800.01 et seq.); had given a bail bond; and thereafter forfeited it, which, according to him, is equivalent under Florida law to a plea of vtolo contendere.
The Florida Bar, on notice to the applicant, conducted a hearing at which the sworn testimony of the police officers, the other alleged participant in the offense, the applicant and his witnesses was received. Sufficient cause for formal charges having been found, a proceeding was brought by the Florida Bar for disbarment. A Referee was appointed to hear the evidence; and testimony was received before the Referee. At the hearing before the Referee the applicant acted as his own attorney. The Referee found that the applicant had committed sodomy and the Supreme Court of Florida approved the disbarment of the applicant in 1957.
The applicant throughout maintained his innocence of the charges and he continues to maintain his innocence on the present application. The record indicates, however, that he changed his position concerning the events in issue during the Florida proceeding and -that the Referee in his findings commented on this inconsistency.2 On our independent view of the record, as we read it, the findings of fact were substantiated by the evidence ; issues of credibility were raised by the evidence; and the Referee was entitled to decide those issues against the applicant.
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Per Curiam.
The applicant, certified as having passed the Bar examination, has filed for admission to the Bar of _ this State. The Committee on Character and Fitness has reported that the [253]*253applicant possesses the requisite character and fitness for an attorney at law, “ notwithstanding the admission of the applicant to being a homosexual and having engaged in homosexual acts. ” The committee withheld a further recommendation, however, because of other facts appearing in the application.
The applicant was admitted to the Bar of the State of Illinois on June 18,1951. He has never practiced in that State. He was admitted to the Bar of the State of Florida on April 24, 1953 and engaged in active practice there. He was disbarred by the Supreme Court of Florida on September 6, 1957, based on charges filed by the Florida Bar (State ex rel. Florida Bar v. Kimball, 96 So. 2d 825 [Fla.]). He has not sought reinstatement to the Florida Bar.
It is the applicant’s disbarment and the charges leading to the disbarment which concern us. The Committee on Character and Fitness made no further recommendation in this case because it believed that Matter of Peters (250 N. Y. 595, affg. 221 App. Div. 607) and subdivision 5 of section 90 of the Judiciary Law enunciated public policy that one disbarred in a sister State may not be admitted to the practice of law in this State without first having been readmitted in the sister State. We do not read either Matter of Peters or this statute to restrict so narrowly the power to admit to the Bar of New York. We think, rather, that the fact of disbarment and the charges underlying the disbarment must be considered together with all the other circumstances, so that the total background of the applicant may be viewed to determine his character and fitness.
In Matter of Peters the Court of Appeals merely answered in the negative a certified question reading as follows (250 N. Y. 595, 596): “Is applicant entitled as a matter of right to admission to the Bar of this State, in view of his claim that his disbarment in another State was void, and of his having been permitted to take, and having passed the bar examination in this State,-, after notice to the State Board of Law Examiners of his claim, and in view of the report of the Committee on Character and Fitness, submitting the matter to the court without recommendation, and finding good general character apart from the implication flowing from such disbarment? ” The Appellate Division, Third Department, in denying the motion in question, which was by Peters for relief relating to his application for admission to the Bar, had stated that the validity of the disbarment in Alabama was assumed and that it was a “badge of unfitness” (Matter of Peters, 221 App. Div. 606, 609, supra). But the court further criticized the applicant for his diatribe against the judges [254]*254in Alabama who had disbarred him, saying (p. 609): “We now say with finality what we have said in effect repeatedly to. this applicant: we will not give countenance to his tirade against the courts of Alabama by even considering the validity of their disbarment judgment in his case. ’ ’
Hence, in our opinion, Matter of Peters does not foreclose the exercise of judgment by this court in determining the character and fitness of an applicant, regardless of his disbarment in another State. Nor do we think that the recent amendment to subdivision 5 of section 90 of the Judiciary Law (L. 1969, ch. 743, eff. Sept. 1,1969) removes our power.1 It is limited, in our view,, to an applicant who was disbarred in another State for the commission of a crime and has since been pardoned; the amendment requires only that the pardon be accompanied by readmission in the other State before the applicant may be considered for readmission here;
We believe that we are not bound to give full faith and credit to the Florida judgment of disbarment in the constitutional sense (U. S. Const., art. IV, § 1; cf. Florida Bar v. Wilkes, 179 So. 2d 193 [Fla.]; Ann. 173 A. L. R. 298; 7 Am. Jur. 2d, Attorneys at Law, § 20). Reasons of policy regarded as significant in one Státe in their effect on the conduct of attorneys may not prevail in another State, because of differing conditions; the' sensitive office of an attorney must be continually subject to the control of the courts in which the attorney, practices or seeks admission. The Federal courts do not automatically disbar an attorney because he is disbarred by a State court (Theard v. United States, 354 U. S. 278, 281-282; Matter of Rhodes, 370 F. 2d 411, cert. den. 386 U. S. 999). The rule which emerges from these and other cases is that high respect for the foreign determination of guilt must be accorded by the court to which the disbarred attorney applies for admission, but that the local court will make an independent judgment of the effect of that determination on the character and fitness of the applicant (see, also, Matter of McCue, 211 Cal. 57; State Bd. of Law Examiners v. Brown, 53 Wyo. 42). Where we find that we would have disbarred an attorney on the same facts, the applicant should be required to be readmitted in the first State before he may be admitted by us to the Bar in our State.
[255]*255We turn, then, to the grounds upon which the Florida disbarment was effectuated. The applicant was charged arid found guilty of behavior contrary to good morals and in violation of the laws of the State. We have reviewed the record and find that he had been accused of committing sodomy in 1955 on a public beach at night. He had been arrested previously by the police of Orlando, Florida, for the offense (Fla. Stat. Ann., § 800.01 et seq.); had given a bail bond; and thereafter forfeited it, which, according to him, is equivalent under Florida law to a plea of vtolo contendere.
The Florida Bar, on notice to the applicant, conducted a hearing at which the sworn testimony of the police officers, the other alleged participant in the offense, the applicant and his witnesses was received. Sufficient cause for formal charges having been found, a proceeding was brought by the Florida Bar for disbarment. A Referee was appointed to hear the evidence; and testimony was received before the Referee. At the hearing before the Referee the applicant acted as his own attorney. The Referee found that the applicant had committed sodomy and the Supreme Court of Florida approved the disbarment of the applicant in 1957.
The applicant throughout maintained his innocence of the charges and he continues to maintain his innocence on the present application. The record indicates, however, that he changed his position concerning the events in issue during the Florida proceeding and -that the Referee in his findings commented on this inconsistency.2 On our independent view of the record, as we read it, the findings of fact were substantiated by the evidence ; issues of credibility were raised by the evidence; and the Referee was entitled to decide those issues against the applicant.
The applicant submits that the disbarment in Florida should not be considered against him for several reasons. First, he points out that the statute under which he was arrested in 1955 -was held unconstitutional by the Supreme Court of Florida in 1971 (Franklin v. State, 257 So. 2d 21 [Fla.]). We consider that this does not alter the case. On appeal from a judgment convict[256]*256ing the appellant of the felony under the Florida statute, the court not only stated that its judgment, holding the felony statute (Fla. Stat. Ann., § 800.01 et seq.) void for vagueness and uncertainty, was prospective only, but also directed entry of judgment of guilty of a lesser included offense (a misdemeanor), to wit: the commission of an unnatural and lascivious act. In doing so, the court recognized the validity of the applicable "Florida statute (Fla. Stat. Ann., § 800.02) which treated such act as a misdemeanor. Therefore, the decision referred to by the applicant did not affect his conviction and subsequent disbarment, but ratified it. Moreover, we note that in 1955, at the time of the incident leading to the applicant’s conviction, sodomy, even between consenting adults, was a felony in New York (former Penal Law, § 690). Accordingly, under our then laws, if the applicant had been an attorney in our State, he would have been automatically disbarred and he could not be readmitted except upon a reversal of the conviction or a pardon (Judiciary Law, § 90, subd. 5). If he could not have been readmitted, initial admission may not be granted. The fact that at present, under the aforesaid Florida cases, the applicant’s act would be considered a misdemeanor in Florida and would also be considered a class B misdemeanor under section 130.38 of our Penal Law (proscribing consensual sodomy) does not hffect the validity or propriety of the 1957 disbarment. Moreover, we cannot overlook as trifling the conduct of the applicant in attempting to mislead the authorities in Florida by giving false testimony in the disbarment proceeding.
Second, the applicant contends he was a victim ofi entrapment in the incident upon which his disbarment was based. He stated before the Committee on Character and Fitness that he had achieved a reputation in Florida for protecting the rights of black people and that he believed that an Air Force Sergeant just prior to the incident approached him with suggestive advances because he was representing a client who had been assaulted by an Air Force enlisted man. The applicant did not produce any evidence in support of this contention before the committee; nor did he, as the record shows, make that contention at any time in the proceedings in Florida. We see nothing in those proceedings which indicates that the applicant was not granted a fair and full hearing in Florida.
Third, although the applicant does not specifically make the claim in his papers, it is implicit in his application that he urgjes that the moral climate toward homosexuality has so changed since 1957 that his disbarment on that ground should not deter [257]*257his admission to the Bar here. However, onr Legislature still considers consensual sodomy an act of ‘ ‘ deviate sexual intercourse ” and, as such, a class B misdemeanor (Penal Law, § 130.38). Accordingly, so long as this statute is in effect, homosexuality, which, in its fulfillment, usually entails commission of such a statutorily proscribed act, is a factor which could militate against the eligibility of an applicant for admission to the Bar who proposes. to pursue this way of life in disregard of the statute. We do not, however, see any need to presently reach this question, in view of the facts and circumstances heretofore noted, which, in our opinion, are sufficient to warrant denial of the application; nor do we find it necessary to anticipate the issue of the constitutionality of any legislation which deals with the private morality of homosexuals.
Accordingly, we conclude that the applicant lacks the requisite character and fitness to be admitted to the Bar in this State and that his application should be denied.