In re Brophy

83 A.D.2d 975, 442 N.Y.S.2d 818, 1981 N.Y. App. Div. LEXIS 15438

Opinion

Respondent was admitted to the Bar on February 20, 1973 by the Appellate Division, Fourth Judicial Department. On January 12,1981 he was convicted in the United States District Court for the Western District of New York, upon a verdict, of the misdemeanor of willfully depriving an individual of rights secured to him by the United States Constitution in violation of sections 242 and 2 of title 18 of the United States Code. He was sentenced to pay a fine of $500. Recent amendments to section 90 of the Judiciary Law (L 1979, ch 674, § 1) mandate the automatic suspension of an attorney convicted of a serious crime unless such suspension is set aside upon the attorney’s application by the Appellate Division (Judiciary Law, § 90, subd 4, par f). On February 11, 1981 respondent filed a record of his conviction with this court and moved to set aside the automatic suspension, claiming that his conviction resulted from an inadvertent violation of a prosecutor’s duty under the mandates of Brady v Maryland (373 US 83) not to withhold evidence favorable to an accused. We granted respondent’s motion and directed that he show cause why a final order of suspension, censure or removal from office should not be made pursuant to section 90 (subd 4, par g) of the Judiciary Law. Thereafter respondent and petitioner filed papers on the question of the sanction to be imposed upon respondent. In determining the appropriate measure of discipline, we have taken into consideration respondent’s previous unblemished record, as well as the fact that he has suffered the stigma of a criminal conviction, and are of the opinion that the interests of justice will be adequately served by a censure. Respondent censured. Sweeney, J. P., Main, Mikoll, Yesawich, Jr., and Herlihy, JJ., concur.