Answer Please

A New York attorney convicted on plea of guilty of two felony counts of aggravated harassment was automatically disbarred as a result. He also resigned from practice.

The convictions were later vacated on the “sole basis that the underlying crimes were held to be unconstitutional by the [New York] Court of Appeals in an unrelated case.”

The Albany Times Union reported on the criminal charges.

The decision describing the conduct but remanding the conviction in light of competency issues  is linked here.

Defendant was charged in an indictment with 11 counts of aggravated harassment in the second degree as a hate crime, after he made anonymous telephone calls to African-American residents of his neighborhood and used threatening language, profanity and racial epithets.

The attorney moved for reinstatement after the conviction was vacated. The motion was opposed  by the Committee on Professional Standards.

The Appellate Division for the Third Judicial Department held the reinstatement in abeyance while proceedings based on the underlying facts were commenced. On January 19, 2016, a petition of charges was filed. The attorney then moved to dismiss the petition.

Not so fast, held the court.

Respondent’s motion to dismiss is founded primarily on his claim that the petition of charges is impermissibly based upon information and statements obtained from respondent’s “now sealed criminal case.” However, as this Court indicated in its June 2015 order directing commencement of the subject investigation, CPL 160.50 (1) (c) permits review of the record on appeal previously submitted to this Court in conjunction with People v Hennessey (supra). Accordingly, we find no basis to grant respondent’s pre-answer motion to dismiss the petition of charges.

The attorney must now answer on the merits. (Mike Frisch)