Conviction Reversed; Attorney Still Disbarred Based On Conviction
An attorney convicted of two counts of felony possession of a sexual performance of a child was automatically disbarred by the New York Appellate Division for the Third Judicial Department, notwithstanding the court’s reversal of that conviction.
From the court’s order reversing the criminal conviction and dismissing the indictment on grounds of delay
On January 28, 2009, defendant’s computer was seized by the Town of Colonie Police Department (hereinafter TCPD) after a computer repair technician reported that he discovered the computer contained what he believed to be child pornography. The following day defendant was questioned by the TCPD and, in July 2009, it obtained a search warrant to analyze the content of defendant’s computer. On December 4, 2013, defendant was indicted and charged with 26 counts of possessing a sexual performance by a child, a class E felony. Relevant to this appeal, defendant moved to dismiss the indictment contending that the nearly five-year delay in obtaining the indictment was unreasonable and violated his due process rights. Although defendant requested and the People consented to a Singer hearing (see People v Singer, 44 NY2d 241 [1978]), County Court summarily denied defendant’s motion. Thereafter, reserving his right to appeal the Singer issue, defendant pleaded guilty to two counts of the indictment and, after an initial sentencing error, was resentenced to concurrent prison terms of 1 to 4 years, which County Court stayed pending disposition of the instant appeals…
The record, however, is shockingly sparse concerning the reason for the preindictment delay. In opposition to defendant’s motion to dismiss, the People asserted that the Town of Colonie Police Department originally referred the matter to the office of the United States Attorney for the Northern District of New York and did not provide the People with defendant’s file until November 2013. However, without explaining the source of their knowledge, they go on to summarize events that took place before they received the file, including unsuccessful preindictment negotiations between defense counsel and a federal prosecutor, defendant’s firing of his attorney, the assignment of a new Assistant United States Attorney to the case and the decision of the United States Attorney not to prosecute defendant.
The People’s proffered reasons raise more questions than they answer. For example, the People did not reveal when and how they first learned that the matter had been referred to the United States Attorney, nor did they offer any explanation as to why they did not prosecute defendant while he was subject to federal indictment. While the answers to these questions, and others, may not be readily available, I find it significant that the People consented to a Singer hearing, thereby suggesting that they possessed additional information that could illuminate the circumstances that precipitated the delay. That the statements made in the sparse, 1½-page affidavit submitted by the People are based merely upon a review of the files maintained by the Albany County District Attorney — and do not come from someone with personal knowledge of the circumstances — further supports this conclusion.
The reversal did not alter the result
This Court’s recent reversal of Montague’s conviction based upon preindictment delay (___ AD3d ___, 2015 NY Slip Op 05721 [July 2, 2015]) does not change the result since “[r]eversal of the conviction does not automatically restore the attorney to the [b]ar [and, t]o attain such relief, the attorney must make a motion for reinstatement” (Matter of Toro v Malcolm, 44 NY2d 146, 152 [1978] [citations omitted]).
(Mike Frisch)