Withheld Adjudication Triggers New York Disbarment Rule
A “somewhat unique” set of circumstances did not prevent the New York Appellate Division for the First Judicial Department from concluding that a Florida offense involved a “conviction” and was “substantially similar” to a New York felony, requiring automatic disbarment.
In 2015, an amended information was filed in the Circuit Court of the Seventeenth Judicial District, Broward County, Florida charging respondent with grand theft in the third degree, a felony under Florida Statutes Annotated §§ 812.014(1)(a) and (b), and 812.014(2)(c)[3]. The charge arose out of his knowing misappropriation of at least $10,000 from his employer where he worked as a paralegal from April 10, 2010 through February 17, 2011.
On January 8, 2018, respondent entered a guilty plea to the grand theft charge, and entered into a deferred prosecution agreement. Pursuant to that agreement, prosecution would be deferred for one year provided he enter a pretrial intervention (PTI) program and pay $20,000 in restitution. Upon successful completion of the program, his plea would be vacated and the case dismissed. The court signed a disposition order form which noted a “Change of Plea” to “Guilty,” and “Sentence Withheld” with a notation regarding the PTI program.
On March 29, 2018, respondent was arrested for driving under the influence of alcohol (DUI charge) and was expelled from the PTI program. As a result, on May 18, 2018, the court noted that respondent had already pleaded guilty on the grand theft charge, agreed to “withhold adjudication”, and sentenced him to one year probation. In November 2018, the court granted respondent early termination of this probation.
In September 2018, respondent pleaded guilty to reckless driving, the DUI charge was dismissed, and he was sentenced to one year of probation.
The Attorney Grievance Committee sought either automatic disbarment or an interim suspension.
The fly in the ointment
Respondent contends, however, that the Committee’s motion should be denied in its entirety. He argues that the Committee’s position that he has been automatically disbarred based on his guilty plea is not sustainable because the Committee cannot satisfy Judiciary Law § 90(4)(b) given that there has been no presentation of “a certified or exemplified copy of [a] judgment of such conviction” upon which to strike his name from the roll of attorneys. To that end, and relying on Peters v State, 984 So 2d 1227, 1231-1232 (Fla 2008), cert denied 555 U.S. 1109 (2009) and Thomas v State, 356 So 2d 846, 847 (Fla Dist Ct App 1978), respondent points to the fact that the court’s withholding of adjudication pursuant to Florida Statutes Annotated §§ 948.01(1) and 948.01(2) evidences that there was no actual conviction.
Notwithstanding his concession that there are instances under Florida law in which a guilty plea, where adjudication has been withheld, meets the definition of a conviction, respondent argues that there is no statutory provision or case law which defines as a “conviction” a guilty plea to the offense of grand theft in the third degree where adjudication has been withheld. The argument is without merit.
While this matter “presents a somewhat unique scenario” because the Florida court, pursuant to Florida Statutes Annotated §§ 948.01(1) and 948.01(2), did not issue a final judgment of conviction as it withheld adjudication and sentenced respondent to probation, contrary to respondent’s argument, his guilty plea qualifies as a “conviction” sufficient to trigger automatic disbarment under Judiciary Law § 90(4)(a) and (b).
The plea sufficed
New York’s CPL 1.20(13) clearly defines a conviction as occurring at the time a guilty plea is entered. While Judiciary Law § 90(4)(a) does not specifically define the term “conviction,” “[l]est there be any doubt, for purposes of disciplinary proceedings a felony conviction calls for automatic disbarment upon entry of plea, rather than upon imposition of sentence” (Matter of Kourland, 172 AD2d 77, 79 [1st Dept 1991]; see Matter of Carpenter, 305 AD2d 19, 20 [1st Dept 2003]; Matter of Merrill, 214 AD2d 244, 245 [1st Dept 1995]). Under these circumstances, respondent’s guilty plea is a conviction for the purposes of Judiciary Law § 90(4).
Essential similarity analysis
Although the two statutes have different minimum threshold values as to the stolen property, Penal Law § 155.35(1)’s requirement that the valuation exceed $3,000 is in line with Florida Statutes Annotated § 812.014(2)(c)[3]’s requirement that the property at issue be “[v]alued at $10,000 or more, but less than $20,000” (see Matter of Chiofalo, 123 AD3d 22, 24 [1st Dept 2014] [Texas conviction for first degree felony theft in excess of $200,000 found analogous to conviction for grand larceny in the second degree as Texas statute’s threshold amount satisfied by New York statute’s requirement that theft involve property with value in excess of $50,000]). Furthermore, as part of his guilty plea, respondent pleaded guilty to the amended information that alleged, inter alia, that:
“between the 10th day of April, 2010 through the 17th day of February, 2011 … [respondent] did … unlawfully and knowingly obtain or use or endeavor to obtain the property of [his employer], to wit: U.S. Currency of the value of ten thousand dollars ($10,000) or more but less than twenty thousand dollars ($20,000) with the intent to either temporarily or permanently deprive [his employer] of a right to the property or benefit from the property, or to appropriate the property to his own use or to the use of any person not entitled to the use of the property, contrary to F.S. 812.014(1)(a), 812.014(1)(b), & 812.014(2)(c)[3] …”
Respondent’s restitution payment of $20,000 further evidences that he misappropriated no less than that amount from his employer.
Based on the foregoing, Florida’s felony of grand theft in the third degree is “essentially similar” to New York’s felony of grand larceny in the third degree. Given our determination, we do not reach the Committee’s alternate request for “serious crime” related relief.
(Mike Frisch)