Substantially Similar
A criminal conviction in Nevada was deemed substantially similar to a New York felony triggering automatic disbarment by the New York Appellate Division for the First Judicial Department
On February 15, 2023, respondent pleaded guilty to the felony of reckless driving in violation of Nevada Revised Statutes (NRS) § 484B.653. Respondent’s guilty plea stemmed from his June 6, 2021 arrest for operating a motor vehicle while under the influence and colliding with another vehicle, substantially injuring a person in the vehicle in which he collided. In June 2023, he received a suspended prison sentence of 24 to 72 months and was placed on probation for 3½ years.
Substantial similarity arguments
In support of its motion, the AGC asserts that the Nevada felony of reckless driving under NRS 484B.653 is “essentially similar” to the New York felony of vehicular assault in the second degree, Penal Law § 120.03. Respondent opposes, arguing that his conviction under NRS 484B.653 is not a proper predicate for automatic disbarment because it is facially dissimilar to Penal Law § 120.03. Specifically, he contends that the NRS definition of “substantial bodily harm” is not essentially similar to the New York Penal Law definition of “serious physical injury.”
Resolultion
New York law also defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). Therefore, respondent’s Nevada felony offense is essentially similar to vehicular assault in the second degree (Penal Law § 120.03) and constitutes a proper predicate for automatic disbarment under Judiciary Law § 90(4) (see e.g. Matter of Woods, 56 AD3d 184 [1st Dept 2008]).
Accordingly, the AGC’s motion should be granted, respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York in accordance with Judiciary Law § 90(4)(a) and (b) and 22 NYCRR 1240.12(c)(1), effective nunc pro tunc to February 15, 2023.
8Newsnow.com reported on the Nevada conduct
A judge sentenced a Las Vegas defense attorney, who in some cases represented DUI defendants, to six months in jail after he was arrested on two DUIs — one where he collided with another driver, sending her to the hospital for a month.
Earlier this year, Brian Smith, 67, pleaded guilty to a charge of reckless driving for his first DUI crash in June 2021 that injured Erin Moltzen.
On Wednesday, District Court Judge Ronald Israel sentenced Smith to the jail term, saying as a defense attorney who represents DUI defendants, Smith should have known better…
Moltzen told the court the crash on Warm Springs Road near Cimarron Road left her with broken bones and a traumatic brain injury. Smith’s friend and attorney, Gabe Grasso, said Smith was from New York City and had only learned how to drive when he moved to Las Vegas with his wife in 2007.
“He had gone to eat lunch with his wife to have her nails done,” Grasso said about the 2021 crash. “He had a couple of glasses of wine, and as a result of this incident, he had a 0.082 [blood-alcohol level], which is within the margin of error.”
(Mike Frisch)