Third Time No Charm
A criminal conviction drew a third disbarment from the New York Appellate Division for the First Judicial Department
On July 30, 2021, respondent pleaded guilty in the District of Columbia Superior Court to two felony offenses, one count of third degree Sexual Abuse and one count of Blackmail in violation of 22 D.C. Code § 3004 (1) and § 3252. In pleading guilty, respondent admitted that he coerced a woman he met over the internet – who had initially agreed to have sex with him for money – to continue having sex with him against her will by sending text messages threatening to divulge to her employer and her parents that she engaged in sex with men for money, unless she continued having sex with him “once or twice a month.”
On January 7, 2022, respondent was sentenced on the third degree sexual abuse conviction to 24 months in jail (which was suspended except for 366 days), three years of supervised release (which was also suspended), three years supervised probation, to pay a fine of $100.00, and required to register as a sex offender. Respondent was released from prison on December 16, 2022.
The District of Columbia Court of Appeals filed an order dated December 2, 2021, immediately suspending respondent from the practice of law pending resolution of the matter. On October 24, 2022, respondent executed an Affidavit of Compliance with D.C. Bar Rule XI §14, acknowledging he was suspended by the District of Colombia Court of Appeals, and a notice that he would not file any exceptions to the Report and Recommendations of the Board of Professional Responsibility. The felony offenses were deemed to be “serious crimes” that constitute “moral turpitude per se” within the meaning of D.C. Code §11-2503(a), mandating automatic disbarment. By Order filed on December 8, 2022, the District of Columbia Court of Appeals disbarred respondent from the practice of law in that jurisdiction nunc pro tunc to October 24, 2022.
In an order dated March 31, 2023, the Supreme Court of Pennsylvania imposed reciprocal discipline and disbarred respondent from the practice of law in the Commonwealth of Pennsylvania.
Consequences of a felony conviction
Pursuant to Judiciary Law § 90(4)(e) automatic disbarment applies if, an attorney is convicted of a “felony” which is defined as “any criminal offense committed in any other state classified as a felony therein which if committed within this state would constitute a felony in this state” (see Matter of Rosenthal, 64 AD3d 16, 18 [1st Dept 2009]). A felony in the other jurisdiction does not have to be the mirror image of a felony in New York but must be “essentially similar” (Matter of Margiotta, 60 NY2d 147, 150 [1983]). Thus, we must compare the applicable out-of-state and New York felony statutes, as well as look to our own precedent on this issue. Similarity can also be established by admissions made under oath during a plea allocution or evidence adduced at trial, read in conjunction with the indictment or information (see Matter of Fengling Liu, 153 AD3d 45, 48 [1st Dept 2017]; Matter of Adams, 114 AD3d 1, 2-3 [1st Dept 2013]; Matter of Lin, 110 AD3d 186, 187 [1st Dept 2013]).
Disbarment, as requested by the AGC, is the appropriate sanction. Although not previously compared, the two criminal statutes at issue are essentially similar (Matter of Crommelin, 226 AD2d 44 [1st Dept 1996]).
(Mike Frisch)