Crimes Draw Retroactive Suspension

The New Jersey Supreme Court imposed a one-year retroactive suspension for misconduct described in the report and recommendation of the Disciplinary Review Board

This matter was before us on a motion for final discipline filed by the Office of Attorney Ethics (the OAE), pursuant to R. 1:20-13(c)(2), following respondent’s guilty plea, in the Eleventh Judicial Circuit Court of the State of Florida, Miami-Dade County, to second-degree attempted robbery/carjacking, contrary to Fla. Stat. § 812.133(2)(B); second-degree burglary of an occupied conveyance, contrary to Fla. Stat. § 810.02(3(D); third-degree grand theft of a vehicle, contrary to Fla. Stat. § 812.014(2)(C)(6); second-degree aggravated battery with a deadly weapon, contrary to Fla. Stat. § 784.045(1)(A)(2); and first-degree misdemeanor battery, contrary to Fla. Stat. § 784.03.

For the reasons set forth below, we determine to grant the motion for final discipline and conclude that an indefinite suspension, with a condition, is the appropriate quantum of discipline for respondent’s misconduct.

Facts

Respondent’s May 16, 2022 criminal conviction was based on a series of incidents occurring in rapid succession on the morning of December 1, 2021, in Miami Beach, Florida.

In the first incident (the Cabrera matter), at 10:49 a.m., Luis Cabrera Plasencia  contacted the Miami Beach Police Department to report the theft of his vehicle, a Jeep Renegade. He had left the vehicle parked outside the restaurant where he worked, with a co-worker watching it, as he carried items inside. While he was still inside, his co-worker came into the restaurant to alert him that someone was taking his car. Cabrera ran outside and saw his vehicle being driven away.

Cabrera chased the Jeep on foot, catching up at an intersection. As he approached the car to confront the driver – later identified as respondent – respondent sped away. According to Cabrera, “he was hit by the vehicle, rolled over the car, and fell to the ground.” Respondent turned at the next intersection, and Cabrera lost sight of the Jeep. He then called the police to report his vehicle stolen.

The second incident (the Boza matter), which was reported at about 10:50 a.m., began after respondent drove several blocks, then parked and exited the Jeep. He next approached a parked Ford F550 work truck, in which Eduardo Boza, Jr., was seated in the driver’s seat. Opening the driver-side door, he “began to punch [Boza] in his face while demanding his truck.” However, Boza “fought back and struck [respondent] in the face,” and respondent ran away.

The third incident (the Philippe matter) also was reported at 10:50 a.m. and began as Junior Philippe was parking his electric scooter behind Boza’s truck. Respondent “demanded Philippe give him the scooter,” and, “when Philippe resisted . . . struck him with his right elbow on the side of the head.” However, Philippe “fought back and struck [respondent] multiple times in the face.” Respondent again attempted to run away but was apprehended and arrested at the scene.

According to police reports, Philippe suffered swelling on the left side of his eye, as well as abrasions and swelling on his left knee, for which he was treated at the scene. Boza had bruising by his right eye but declined medical attention. Cabrera suffered abrasions to both knees; however, the record is silent regarding any medical attention in his case.

He was found guilty with adjudication withheld

For each of the four felony counts, Judge Watson sentenced respondent to a three-year probationary term, to run concurrently, and with eligibility for early termination after one-and-a-half-years; for the misdemeanor count, he sentenced respondent to a one-day probationary term, also to run concurrently; and he added “the special condition of 180 days in jail credit for the time [respondent] served.” The court also ordered respondent to attend a mental health evaluation; comply with any resulting treatment recommendations for mental health concerns or substance use; and “stay away” from the victims. During the colloquy, Judge Watson further explained to respondent that, if he completed the term of probation, then the State “is not going to oppose vacating your guilty plea, vacating your sentence. And the State will then dismiss all these charges against you.”

Recommendation for sanction

On balance, respondent’s criminal conduct posed so significant a threat to the public and reflected such a profound (even if apparently short-term) absence of the fitness required of attorneys, we determine that an indefinite suspension is the quantum of discipline necessary to protect the public and preserve confidence in the bar. As a condition precedent to his reinstatement, respondent must submit proof to the OAE of his fitness to practice law, as attested to by a medical doctor approved by the OAE.

The order of suspension expires on May 31, 2024 but requires that Respondent provide medical proof of fitness to the OAE as a precondition to reinstatement.  (Mike Frisch)