In re Wiesner

94 A.D.3d 167, 943 N.Y.S.2d 410

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2012
• Status: Published

Opinions

OPINION OF THE COURT

Tom, J.

Petitioner, a twice-convicted felon, submitted his tenth renewed application to the Committee on Character and Fitness for admission to the bar. The unusual and lengthy history of petitioner’s efforts to gain admission to the New York bar has been affected by differing views of whether petitioner has the moral character and fitness to practice law. The impediment to approval has been the serious crimes committed by petitioner years ago. In prior applications, we judged the passage of time to be insufficient to evaluate the success and sincerity of his rehabilitation.

The salient events and ensuing criminal trial conducted over a quarter of a century in the past can be briefly summarized. Principally, petitioner was convicted in federal court in connection with his operation of a business from about 1980 to 1982 that had the appearance of legality but which was actually an illegal enterprise for distribution of Quaaludes. Petitioner ran putative sleep clinics where he would direct drug purchasers to physicians participating in the scheme, who would then write prescriptions for the purchasers, which would be filled by participating pharmacies. The scheme was both extensive and financially successful and allowed petitioner to lead a flamboyant lifestyle, including his own extensive drug use. However, his life increasingly spiraled out of control and, as federal authorities closed in, he entered into a despondent emotional state that manifested itself in criminal acts committed in July 1983 against his former girlfriend, who also was involved in the drug distribution scheme. Although the girlfriend had separated from petitioner and moved out months earlier, she yielded to his request to see her again. When they met, he displayed a gun and kept her in her apartment for more than seven hours until she tried to escape while he was in the bathroom. As she jumped from the second floor apartment and tried to flee (seriously injuring herself), petitioner fired five or six shots in her direction but did not hit her. According to petitioner’s testimony, he had told her that he intended to commit suicide.

Petitioner was arrested, and in 1985, after a jury trial in Richmond County, he was convicted of attempted murder in the second degree, burglary in the first degree, unlawful imprisonment in the first degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree for which he was sentenced to I2V2 to 25 years (People v Wiesner, 129 AD2d 753 [1987], lv denied 70 NY2d 658 [1987], lv dismissed 71 NY2d 1034 [1988]). In 1987, he pleaded guilty in the United States District Court for the Southern District of New York to conspiracy to violate federal narcotics laws and to distribution and possession of Quaaludes. He was sentenced to time served, having been in federal custody since his December 1984 arrest.

However, in 1989, Judge Raymond Dearie, of the District Court for the Eastern District of New York, granted a habeas corpus petition on the ground that petitioner was denied his constitutional right to represent himself at the trial of the state charges (Wiesner v Abrams, 726 F Supp 912 [ED NY 1989], affd 909 F2d 1473 [2d Cir 1990]). In March 1991, on the eve of retrial, petitioner entered an Alford-Serrano plea (for which he did not have to allocute to the facts of his guilt) to attempted murder in the second degree in exchange for a sentence of 2 to 6 years, nunc pro tunc from December 1984, to run concurrently with time served for his federal conviction. As a result of the two convictions, petitioner was incarcerated from December 1984 to January 1990.

After his release from prison, in a remarkably short period of time, petitioner obtained a college degree and a law degree from CUNY School of Law, and passed the bar in 1994. These academic achievements reflect well on petitioner’s intelligence and competence, and demonstrate his capacity to reassert control over his future. However, these achievements, while commendable, do not resolve the issue we must determine, which is whether petitioner has been sufficiently rehabilitated to satisfy the character and fitness requirement set forth in Judiciary Law § 90 for admission to the bar.

Petitioner’s first application to practice law was submitted to this Court’s Committee on Character and Fitness in January 1995. The application was not approved, and this Court subsequently denied nine successive motions by petitioner seeking to renew his application for admission. On August 19, 2009, this Court granted his tenth motion to the extent of referring his renewed application to the Committee for “investigation, hearing and recommendation.” An evidentiary hearing was conducted before a subcommittee of the Committee on Character and Fitness, which, on February 22, 2010, unanimously recommended his admission. On March 9, 2010, the full Committee met and, by a vote of 20 to 3, recommended petitioner’s admission.

It is evident that the Committee accorded much significance to petitioner’s ability over an extended period of time to pursue a productive and positive life and career. Our careful review of the record likewise persuades us that these accomplishments are substantial indications of his rehabilitation.

Petitioner’s criminal conduct, committed almost 30 years ago, involved well-orchestrated dishonesty, culminating in his federal conviction, rampant drug use and an inexplicable and almost impulsive act of violence towards his former girlfriend, leading to his New York conviction. The operative question is whether the record demonstrates that petitioner has completely rehabilitated himself, with specific reference to those character traits, so that he may now be said to possess the requisite character and fitness to practice law. We consider it particularly relevant that petitioner has been admitted to the bar in a number of other jurisdictions, where he has been practicing law for several years without incident. With these factors in mind, we turn to the applicable standards and the testimony offered in support of petitioner’s application.

Judiciary Law § 90 (1) (a) directs, in relevant part, that upon certification that a person has passed the bar examination, the Appellate Division, upon being satisfied that “such person possesses the character and general fitness requisite for an attorney and counsellor-at-law . . . shall admit him to practice as such attorney and counsellor-at-law.” “Character,” often termed moral character in case law and commentary, is not defined in the statute, and is usually portrayed in terms of the applicant’s fulfillment of professional responsibilities. Notably, the statute does not contemplate open-ended moral findings of a personal nature. Thus, the statute reflects no intent to impose a continuing punishment on an applicant with a criminal past. Although the seriousness of prior crimes remains an important, and perhaps sometimes dispositive, consideration, the Court’s task is to evaluate the prospective risk that the applicant will abuse the trust and responsibilities bestowed upon him by virtue of his professional status. Therefore, our analysis proceeds on an evaluation of the record to determine whether the applicant possesses behavioral traits that may constitute a threat to individual clients or society in general and undermine the integrity of the legal system.

Since Judiciary Law § 90 does not provide a set of standards to evaluate bar applicants with a criminal record, we may be guided by the standards promulgated by the American Bar Association, which involve a number of related inquiries: the applicant’s age when the crime was committed, whether the crime was recent, whether the information about the crime is reliable, the seriousness of the conduct, underlying factors, the cumulative consequences of the crime, evidence of the applicant’s rehabilitation, whether the applicant has since made a contribution to society, the applicant’s honesty during the application process and, in that regard, whether the applicant omitted material information or made material misrepresentations (Comprehensive Guide to Bar Admissions Requirements, ABA Section of Legal Education and Admissions to the Bar and National Conference of Bar Examiners at vii-viii [1994-1995]). With respect to these criteria, the record shows that petitioner was in his 20s when he committed his crimes, which, though very serious, are not recent, having occurred some three decades ago; the evidence in support of his convictions is beyond dispute; he seriously injured a woman whom he professed to love; and he sold significant quantities of controlled substances to prescription drug abusers. In assessing petitioner’s present application, we have focused on the extent of his rehabilitation, his contributions to society and his candor before the Committee.

Case law and commentary weigh not only the seriousness of an applicant’s criminal history, but also the risk that he may pose as a lawyer. Conversely stated, the inquiry is whether the record establishes that the applicant has been rehabilitated to the extent that the traits that led to his criminal conduct have been demonstrably excised from his character. However, evaluating an applicant’s moral growth as a measure of his rehabilitation is difficult, which explains the extensive history of petitioner’s applications. Many attempts to address the issue of rehabilitation start with Justice Hugo Black’s observation that moral character “by itself, is unusually ambiguous . . . any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer” (Konigsberg v State Bar of Cal., 353 US 252, 262-263 [1957]). Elsewhere it has been observed that “[w]e are unable to see inside [the applicant’s] head. A person’s character is far more accurately indicated by his prior actions” (Application of Maria C., 294 Md 538, 541, 451 A2d 655, 656 [1982]). Thus, objective evidence of such an applicant’s rehabilitation should be more important than speculation about the internal workings of that applicant’s thinking.

If the seriousness of the criminal history alone were dispositive, some consistency in New York decisions would be expected. However, the factors that courts have considered in making admission decisions are not easily categorized. In a decision of some vintage, a New York applicant’s character was sufficiently challenged as lacking veracity to justify rejection because of his testimonial contradictions both as a defendant and as an applicant before the Committee on Character and Fitness (Matter of Cassidy, 268 App Div 282 [1944], affd 296 NY 926 [1947]), although in that case the applicant’s advocacy of the government’s overthrow during a tense historical epoch and other factors augmented the reasons for rejection. The Third Department rejected an applicant, on the recommendation of the Committee, because of his criminal history, which included convictions for bank robbery and murder in the first degree (Matter of Roger MM., 96 AD2d 1133 [1983]), yet declined to reject another applicant on the basis of his nine-year-old conviction for assault in the second degree (Matter of Newhall, 143 AD2d 293 [1988]). It is evident that serious misconduct in the past must be considered in the context of more recent evidence; criminal history, and how it bears on an application, must be evaluated through the prism of the present since the test is whether the applicant currently possesses the character and fitness to practice law (Matter of Anonymous, 212 AD2d 1067 [1995]). Thus, in another Third Department case, evidence that from 1990 to 2004 an applicant was cited for numerous traffic violations, failed to disclose his arrest record on his law school application, was discharged from multiple jobs for misconduct, was less than candid about his past conduct, and was diagnosed with, and was under current treatment for, alcohol and marijuana dependency, presented recent and even continuing hurdles over which the applicant could not pass (Matter of Anonymous, 52 AD3d 1168 [2008]).

In analyzing whether an applicant with a criminal past has demonstrated adequate rehabilitation, two inquiries generally present themselves: the scope of conduct to be evaluated and the time frame to be employed. In determining what scope of conduct should be considered, the seriousness of the crimes is important, as previously noted, but so too are more recent patterns of behavior that may persuasively demonstrate the applicant’s good character. Rehabilitation means that the record provides a basis to believe that the applicant’s past problems are no longer manifest and his life has changed in such a manner that their recurrence is unlikely (Application of Cason, 249 Ga 806, 294 SE2d 520 [1982]; Carr, Note, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8 Geo J Legal Ethics 367, 386 [Winter 1995]) and that he “has undertaken a useful and constructive place in society” (George L. Blum, Annotation, Criminal Record as Affecting Applicant’s Moral Character for Purposes of Admission to the Bar, 3 ALR6th 49, § 14, citing Matter of Prager, 422 Mass 86, 661 NE2d 84 [1996]; Carr at 386), can be trusted by clients and will not pose a danger to the public (Clemens, Facing the Klieg Lights: Understanding the “Good Moral Character” Examination for Bar Applicants, 40 Akron L Rev 255, 268 [2007]). This concept will be revisited in the assessment of petitioner’s character references and the testimony offered in support of his admission.

In evaluating whether a former offender has sufficiently abandoned the traits that contributed to his criminal record so that he may be found to be rehabilitated, the passage of time is significant. The conduct of petitioner, now in his sixth decade of life, over the last 30 years affords a clearer image of his current character and what it portends for the future of his legal career. That being said, time is not, by itself, the dispositive factor demonstrating that an applicant has rehabilitated his character (Blum at § 14; Clemens at 281). The seriousness of past crimes may require a longer period to demonstrate successful rehabilitation (Blum at § 14). It has been observed that “[t]ime alone will not alleviate the damage of a conviction. No specific time is necessary or sufficient to demonstrate rehabilitation” (Clemens at 281 [footnote omitted]).

There is scant New York jurisprudence to guide us on the minimum period of time that should elapse before an applicant’s rehabilitation can be safely evaluated, which necessarily implicates the nature of the prior criminal conduct. Case law from other jurisdictions, though useful, must be regarded with circumspection, due to the abbreviated factual summaries often included in the decisions. Applications have often been denied because of the brevity of the intervening period, sometimes compounded by other factors, including the applicant’s lack of candor (see e.g. In re Gossage, 23 Cal 4th 1080, 5 P3d 186 [2000] [applicant killed his sister 25 years before; rehabilitation defeated by 16 additional crimes that were committed between his release on parole and his application for admission, some of which were omitted from the application]; Seide v Committee of Bar Examiners, 49 Cal 3d 933, 782 P2d 602 [1989] [seven-year period since applicant’s arrests during law school insufficient to purge extensive history of drug trafficking convictions]; Florida Bd. of Bar Examiners re G.J.G., 709 So 2d 1377 [Fla 1998] [applicant, charged with aggravated assault three years before filing amended bar application, cheated on bar exam six years before; pattern of conduct and insufficient passage of time warranted denial]; In re Childress, 138 Ill 2d 87, 561 NE2d 614 [1990] [16 years since rape and robbery convictions insufficient for rehabilitation]; Prager, 422 Mass 86, 661 NE2d 84 [substantial marijuana smuggling operation resulting in four felony convictions, six years before application]; Matter of Moore, 308 NC 771, 303 SE2d 810 [1983] [applicant, convicted of murder and assault on a female 12 years before application, made threats in the interim]). Conversely, applicants with serious criminal records have been admitted after an intervening period far shorter than the three decades involved in the present case (see e.g. In re Manville, 538 A2d 1128 [DC 1988] [three applicants admitted to bar notwithstanding 15-, 17- and 22-year-old convictions for voluntary manslaughter, attempted robbery, and narcotics distribution]; In re Polin, 630 A2d 1140 [DC 1993] [nine-year-old conviction for conspiracy to distribute cocaine]; Application of James G., 296 Md 310, 462 A2d 1198 [1983] [applicant charged with, albeit not convicted of, two murders, but convicted of simple assault and forgery and uttering, 12 years before application]; Application of Strait, 120 NJ 477, 577 A2d 149 [1990] [applicant’s drug charges occurred five years before granted admission; court rejected Committee’s conclusion that applicant was not candid]; In re Beers, 339 Or 215, 118 P3d 784 [2005] [although candor remained questionable, applicant granted admission despite 13-year-old felony conviction for conspiracy to distribute cocaine and additional misdemeanor convictions]).

It is obvious that there is no bright-line rule as to how much time is adequate. Trying to devise such a standard would be a pointless exercise in view of the sui generis nature of these cases. However, in the context of the cited rulings, the passage of time in the present matter assumes significant importance. The time elapsed since petitioner’s offenses were committed provides a very long continuum along which to assess his moral trajectory, his trustworthiness as a practicing attorney, his willingness to conform to professional ethical requirements, his nonviolence and, of equal import in this case, his ability to remain drug free, since that weakness seems inextricably connected to his past criminal conduct. Petitioner’s record in the quarter of a century since his release from prison — equaling almost one half of petitioner’s life — affords ample opportunity to judge the state of petitioner’s current character.

At the time of petitioner’s first application for admission in 1995, a subcommittee of the Committee on Character and Fitness held hearings, at which petitioner was represented by the late Haywood Burns, Esq., one-time Dean of CUNY School of Law. A majority of the subcommittee voted to reject petitioner’s application because of the seriousness of his crimes, the inadequate passage of time and some uncertainties regarding his explanation about his state of mind preceding the shooting of his former girlfriend (some 12 years before) that had resulted in his conviction for attempted murder. This Court likewise rejected the application notwithstanding the recommendations by respected members of the bar and others who had the time and opportunity to become familiar with petitioner. The perspective afforded by time and familiarity was unavailable to this Court, which could only gain the necessary information to evaluate petitioner over an extensive time period. Though petitioner was persistent, his subsequent motions for admission met with similar results. In denying a renewal motion in 2006, we acknowledged petitioner’s admission to the bar in other jurisdictions, but nevertheless declined to grant affirmative relief. Ultimately, by order entered August 17, 2009, we granted petitioner’s renewal motion to the extent of referring the matter to the Committee for an investigation, hearing and recommendation. In his moving papers, petitioner pointed out that 26 years had intervened since his crimes; he had then reached the age of 55; he had been admitted to practice in the federal courts for the Eastern, Western, Northern and Southern Districts of New York, and the Second and Third Circuit Courts of Appeal; and, since 2005, he has practiced in the state and federal courts of New Jersey. In October 2011, petitioner was admitted to the United States Tax Court. In total, petitioner has met the character and fitness requirements necessary to be admitted to practice law in nine jurisdictions. Petitioner rightly maintains that his rehabilitation is evident not only from the various testaments to his personal probity and contributions to society but also from his record in those jurisdictions as a practicing attorney, which has remained unblemished over several years.

Although our approval in the past was impeded by the brevity of time, a sufficient time period has now passed without incident in petitioner’s life — during which he has been a practicing attorney in good standing and has contributed to society — that we are now persuaded that a change in circumstances warrants a different result.

Two character references in support of petitioner’s 1995 application for admission are notable, providing a good starting point for our review of the record. John D. Feerick, formerly Dean of Fordham Law School, one of New York’s most eminent attorneys and one whose name is synonymous with integrity, addressed petitioner’s successful efforts to change the bylaws of the Association of the Bar of the City of New York to facilitate the admission of former felony offenders. While Dean Feerick was unfamiliar with the nature of petitioner’s offenses, and petitioner’s efforts obviously advanced his own interests, Dean Feerick, upon being so informed, expounded on the importance of redemption in adhering to his recommendation that petitioner’s application be approved. Another reference was provided by Joseph L. Forstadt, Esq., also a prominent attorney, who knew of petitioner’s ex-offender status, which, he conceded, initially caused him some concern. Significantly, he described petitioner as being candid in discussing the particulars of his crimes. Over time, he came to know petitioner on a personal level, forming a positive opinion of petitioner’s moral character and fitness to practice law. Forstadt also recommended petitioner as an intern to Judge Lorin Duckman, who also testified in his support.

Several character witnesses testified for petitioner at the most recent hearing. We do not simply accept such character testimony carte blanche, and we are constrained to employ the same due circumspection accorded to any character reference offered at an applicant’s request. Nevertheless, the testimony of these witnesses is characterized by a remarkable consistency on relevant points and has a compelling force, whether considered individually or in the aggregate. Notably, the character witnesses are persons of achievement with significant professional credentials who have placed their own reputations on the line by vouching for petitioner’s integrity. Moreover, the subcommittee had an ample opportunity to evaluate each witness as he or she testified, to observe demeanor, to consider the possibility of undue bias and to make relevant inquiries. Therefore, we accord serious consideration to the recommendations of both the subcommittee and the full Committee.

The following character witnesses testified on behalf of petitioner in the present application.

Albert Richter, Esq., former Law Secretary to former Associate Justice John Carro of this Court, described the familiarity he developed with petitioner, whom he supervised during petitioner’s two-year internship in chambers commencing in 1993. The close personal contact they have maintained since that time has provided ample opportunity to evaluate petitioner’s moral character and fitness. Richter explained that while internships usually last only a single year, petitioner’s diligence, productivity and personality led to an extension of his internship. Richter was well aware of petitioner’s convictions, the underlying facts, his incarceration, and his postrelease activities. Richter previously testified before the Committee on petitioner’s 1995 application and before the New Jersey Committee in 2005, offering his now even stronger opinion that petitioner has the character and fitness required of a practicing attorney. Richter remarked that his own career had included a stint as an attorney for the Grievance Committee, making him especially sensitive to the embarrassing possibility that a recommended attorney might act dishonorably. However, he explained that the potential for disgrace to petitioner’s supporters, as well as the destruction of everything that petitioner has worked so hard to achieve should he fail, weighed heavily as factors motivating him to succeed.

Richter portrayed petitioner as having aspired to law school while being “at the bottom of the heap” while he was incarcerated, when he

“made a firm decision ... to become a different person, a better person, give back to society. Which he did through going to law school and a series of many generous acts . . . for which he has received awards. Throughout my many discussions with him, I have come to believe that he has as high an integrity and character as anybody I have met. . . He is a very giving and generous person. He looks out for the underdog. He empathizes with people who . . . are trying to change their lives.”

Richter asserted that he would trust petitioner with his own family’s finances, and found it unthinkable that he would ever act dishonestly towards a client or give less than his very best in representing a client’s interests. He described petitioner, as he has come to know him over the past decade and a half, as a fundamentally different person from the young man leading a criminal life involving significant drug use in the early 1980s. Richter suggested that any remaining semblance of that earlier person likely would have manifested itself, and did not, over the prior five years that petitioner had been practicing law.

Justice Carro offered the perspective of a mentor who, as an Appellate Division jurist and later as a member of the Committee on Character and Fitness, has amassed 30 years of experience in applying the criteria for attorneys’ admission to the bar. Justice Carro related that over the prior 25 years, he probably had more of an opportunity to observe and evaluate petitioner, in his individual and profession capacity, than any other lawyer with whom he had ever dealt. Justice Carro had accepted petitioner as an intern until his own retirement from the bench in 1994, had recommended petitioner to the Kings County District Attorney for a 1994 summer internship, invited petitioner to accept a position with his own newly formed law firm and maintained a social and professional relationship with petitioner thereafter.

Justice Carro testified that for several years he professionally interacted with petitioner in his law office almost daily and has consistently maintained a close personal relationship with him, including regular lunches, dinners and other social occasions. He described petitioner as intelligent, diligent and committed and, more saliently for our present interest, “of high moral character, the utmost integrity,” someone he trusted and would recommend to others. Justice Carro’s opinion of petitioner’s moral character had actually increased since his 1995 testimony, as a result of petitioner’s personal and professional conduct as well as his persistence in seeking admission to the bar when others would have long since given up. Justice Carro related that he often had accepted cases pro bono and asked petitioner for help, which petitioner had never refused. Justice Carro concluded by attesting that he recommended petitioner’s character and fitness “absolutely, without any equivocation,” and he would “highly endorse” his application for admission.

Roland R. Acevedo, Esq., has known petitioner as a friend and colleague for almost two decades, describing petitioner’s friendship as extending to his wife and children, who regularly spend holidays with petitioner. Acevedo, who was the managing attorney for a not-for-profit organization representing HIV-positive persons with family law-related problems until the funding ran out, is now engaged in private practice. He testified that from his own lengthy and close personal knowledge of petitioner, his observations of petitioner’s manner of relating to people and petitioner’s pro bono services in AIDS-related cases, he would rate his moral character as a 10 on a scale of 1 to 10.

Acevedo himself had been incarcerated twice for robbery in the first degree, and in one case had also been charged with attempted murder. The armed robberies were committed in the late 1970s and early 1980s. After being released in 1988, Acevedo attended college in the evenings, worked with the homeless during the daytime, started a Master’s degree in social work, matriculated at Fordham Law School, graduated in 1996 and was admitted to the bar in 1997. Acevedo reflected that Dean Feerick had been supportive of his endeavors and likely was the reason why he was admitted to Fordham Law School. Acevedo met petitioner when Dean Haywood Burns, having been presented with petitioner’s application to CUNY School of Law, asked Acevedo, in view of his own background, to review it and to form an opinion of petitioner.

Acevedo testified that he had been a drug abuser, which was connected with his crimes, and had received drug treatment. While working at the not-for-profit organization, he had been instrumental in helping to provide drug treatment for others and continues to be involved in such efforts. Acevedo characterized himself as exchanging one addiction — drugs — for another— helping people. Acevedo was aware that petitioner had undergone intensive drug treatment and therapy and likewise acquired from that experience a need to help other people.

More recently, Acevedo learned that petitioner came under psychiatric care, taking prescribed medication for mood stabilization, but he described petitioner’s personality as essentially consistent. From his experience, Acevedo was able to spot signs of drug abuse; he had never observed any indication that petitioner presently abused drugs. Acevedo, knowing the basic facts about petitioner’s convictions, characterized him as being tougher on himself than most people are and as regularly expressing his need to make amends. Acevedo conceded that while no one can predict the future, from his own experience he considered himself to be a good judge of character and the likelihood of recidivism. He testified that “with no hesitation, I know [petitioner] is never going down that path again, and I think his behavior shows that.”

Margaret Mayora, Esq., a regulatory energy attorney, testified that she has been acquainted with petitioner since 2002. She was familiar with his criminal past and, indeed, first became aware of him through someone he had dated during that time period. She came to rely on petitioner while she was pursuing a career as a solo practitioner because she was unfamiliar with civil litigation. Petitioner was readily available to help her, without compensation, even serving as lead counsel on a federal sexual harassment case. Mayora observed his influential interaction with that client, who obviously reposed her trust in him, as well as with fellow attorneys, whom he always treated with courtesy and respect. She had no concerns about petitioner handling client funds, noting that although he had several pro bono clients, he also had paying clients, and did not appear to live above his means. With her 16 years of experience dealing with fellow attorneys, she rated petitioner very highly in terms of professionalism, civility and ethics.

Mayora remarked that she was aware that petitioner had done “terrible things” in his past. They had had numerous discussions about them, and she wanted to underscore her impression that he was very remorseful, very contrite, that he manifested this with his dedication and professionalism and a thoroughness in his work product that she had not observed in other lawyers. Mayora offered as an example of his diligence that when she walks her dog at night, she regularly sees his office light on, and his silhouette, at close to midnight. She also related that he adheres to certain rules of practice, one of which is being consistently well prepared, and another punctuality, to the point that he insists on being early for appointments in the event that some unanticipated contingency might arise. In conversations, petitioner observed ethical lapses by other attorneys that he predicted would lead to bad outcomes, about which he was often correct. She testified that she had been in numerous social gatherings with petitioner and had never seen him intoxicated. Mayora characterized petitioner as a good person, genuine and caring, and attested to his moral character without reservation.

Sherry Bokser, Esq., who was senior counsel for the United Federation of Teachers, testified in like vein. Much of her testimony — positively relating how petitioner helped her on various cases, his commitment to clients, her trust in him and the like — replicates testimony already offered and need not be elaborated upon. Bokser testified that she had never known or observed petitioner to be violent. Under questioning from the subcommittee, she testified that petitioner never tried to justify his conduct as to his two criminal convictions but, rather, accepted responsibility for his actions.

Joshua Kamens, Esq., an attorney for the Treasury Department who is a graduate of the University of Pennsylvania, the Wharton School and Fordham Law School, and received an LL.M. from NYU, flew back from a business trip to India early in order to attend the hearing. Kamens, too, testified to his friendship of several years with petitioner, petitioner’s candor about his criminal past, his exceptional diligence in client maters, and his ethical rigor. Kamens related that petitioner’s ethical advice had helped Kamens avoid legal grey areas when involved in an international trade business. On one such occasion, it cost him a client, but he was glad he had taken petitioner’s advice. He testified that it was hard to reconcile petitioner’s former life, as it had been candidly described to him, with the person whom he came to know. Kamens testified that petitioner never tried to justify his past actions, expressed considerable remorse, and “it is something I think he lives with every day of his life in one manner or another.”

Ariyike Diggs, Esq., who received a law degree from Oxford University and an LL.M. from the University of Pennsylvania, testified on petitioner’s behalf for his admission to the New Jersey bar. She first met petitioner in 1996 and has been close friends with him ever since. She described petitioner as “one of the most truthful people that I know.” She testified that she had been dishonest on a nonprofessional matter in 2000 and sought petitioner’s counsel, and that he was one of the few people who urged her to be truthful, notwithstanding the painful consequences.

Diggs, too, ranked petitioner as a 10 on a l-to-10 scale of integrity, honesty, civility and his dealings with other attorneys. She testified that aside from his professional ability, she did not know anyone more thoughtful, diligent or risk-averse than petitioner.

The subcommittee was impressed by the openness and demeanor of the witnesses, finding them to be completely credible and concluding that their testimony had not been tilted in petitioner’s favor by their affection for and loyalty to him. The subcommittee also pointed out that no witness had ever observed petitioner taking illegal drugs, nor had they discerned any indication of petitioner having done so.

Petitioner’s testimony covered much of the same ground already covered in his prior application, including his inability, as an ex-offender, to find work. His participation in volunteer civic activities and pro bono work, reflective of his contribution to the community, merits mention. While in CUNY Law School, he made the acquaintance of Dean Haywood Burns as a result of his participation in several programs. Notably, petitioner established the Ex-Offenders Law Students Association, which worked towards helping probationers and other former offenders. These efforts included arranging for the Department of Probation to send probationers to the law school to undertake clerical jobs while on probation, helping probationers obtain GEDs and providing tutoring to that end, and assisting their attempts to enter college. Petitioner helped to establish a program at CUNY Law School for mentoring underprivileged foster children from diverse backgrounds and encouraging them to complete their education. He also participated in a program to teach students from a local public school weekly classes at the law school and a counseling program in which law students encouraged incarcerated offenders to turn their lives around. After graduating from law school, petitioner worked on numerous pro bono cases for former Justice Carro in his practice. Petitioner’s testimony regarding his continuous acceptance of cases without compensation was entirely consistent with the testimony of the witnesses.

The amount of time during which petitioner has been beneficially engaged in his profession, including pro bono and community work, coupled with the persuasive and often heartfelt testimony of witnesses who have developed a deep familiarity with him — some of whom by experience and training are well equipped to scrutinize his personal development — persuade us of the success of his rehabilitation. It is telling that petitioner’s character references hailed from respected positions of advanced achievement and, themselves, enjoy reputations for high moral character. While readily conceding that this Court cannot foretell the future, we return to the earlier observation made that we cannot reach into the internal workings of petitioner’s mind to gauge his character, but must generally rely on his conduct as an accurate manifestation thereof. Crediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society — matters to which all witnesses have attested — as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement set forth in Judiciary Law § 90.

Further, petitioner’s expressions of remorse, which are both extensive and have the ring of candor, were consistently corroborated by the testimony of the witnesses. Petitioner’s memories and perceptions of his actions and motivations on the night he fired shots towards his fleeing former girlfriend, remain consistent with his earlier testimony that he did not intend to hurt and shoot her. The subcommittee elicited that petitioner at that stage in his life was constantly intoxicated by drug use, primarily amphetamines and Quaaludes, and he had taken an entire bottle of 30 prescription pills (Tenuate Dospan) on the day in question. This was not a drug he was accustomed to taking, and the effect on him was unfamiliar. He described himself as “super-wired,” and appreciated how this might have frightened his former girlfriend. However, at no time did petitioner try to justify his actions as being the consequence of intoxication; rather, it was the subcommittee that elicited this contextual information. Although petitioner recalled what he perceived to be his intent, his memory was blurred as to many events of the evening.

The subcommittee, having had the opportunity to scrutinize petitioner’s demeanor during his testimony and to examine him, summarized in its report that petitioner was “stoned” on drugs at the time, that he was not being intentionally untruthful in his characterization of the events of that evening as he recalled them, and that, at the time of the incident, he was obviously in a highly agitated state, enhanced by the drugs he had taken. Significantly, the record also reflects that there is not one scintilla of evidence that he acted violently or even recklessly with attendant violent result on any other occasion. All witnesses, to the contrary, describe a peaceful and considerate, if hyperactive, person. The subcommittee concluded that petitioner “expressed palpable remorse for his past criminal conduct” and that his “present respect and passion for the law were abundantly obvious from his testimony.”

Based on this record, the dissent nevertheless would impose on this particular petitioner a threshold for moral character that suggests an endless quest in which petitioner will never succeed. The dissent, although casting its net wide in reviewing how moral character has been variously defined, appears to employ a much narrower standard as it drills down decades into the past to give new life to 30-year-old crimes to conclude that petitioner has not fully accounted for that past and, thus, lacks candor. The dissent devotes a substantial portion of its writing to extensively detailing petitioner’s prior illegal conduct surrounding the detention and shooting incident involving his former girlfriend, in effect, trying petitioner all over again for the crime of attempted murder and related counts committed well past a quarter of a century ago; but for which petitioner had pleaded guilty and served time for these crimes ages ago. Moreover, the dissent’s conclusion that petitioner has started the journey towards rehabilitation but is “not there yet,” begs the question: how is petitioner to get “there.” In the dissent’s formulation, it seems that petitioner must testify that he intended to kill his former girlfriend and shot at her, fortuitously missing, in furtherance of that intent. However, petitioner’s consistent testimony has been to the contrary. Perhaps his drug intoxication at the time confused his motives as well as his memory, or perhaps he sincerely believes that the way he remembers the event is the truth. Perhaps, in fact, it is the truth. We really cannot know. However, with respect to what petitioner truly believes, this Court cannot ignore that his sheer doggedness in adhering to his earlier, somewhat muddled, explanation has likely not helped him over the past many years during which he has sought admission. Yet, there was little incentive for petitioner to testify that he lacked culpable intent, especially since he was already convicted of attempted murder in the second degree, on a plea of guilty, even if it was an Alford, plea. Although the dissent dismisses our review of the testimony as paying mere “lip service” to candor, to the contrary, we have carefully evaluated petitioner’s candor without resorting to any preconceived assumptions. In the final analysis, the dissent seems to be speculating about petitioner’s mind set, and to get “there,” it seems that petitioner would have to change his testimony to conform to the dissent’s expectations. However, we cannot rest our analysis on the dissent’s preferred outcome. The dissent characterizes our finding as a “whitewash,” but, as is evident in our analysis and discussion above, we have scrutinized an extensive record to arrive at what we find to be an appropriate and just result.

The dissent is grasping at straws in focusing on an emotional reaction at one point by petitioner in support of its finding of his sense of entitlement and a lack of sincerity. The transcript does not support the dissent’s conjecture. At the end of a day of testimony, after all of his witnesses had concluded their testimony, a subcommittee member asked again whether petitioner felt remorse for the incident involving shots fired towards his former girlfriend. Petitioner, noting that he was almost in tears, protested that after all of the testimony thus far, it was “insulting” for his feelings of remorse to be doubted. Perhaps petitioner interpreted the question to imply a rejection of the witnesses’ testimony regarding his many expressions of regret over the years, or perhaps he was merely overreacting to a painful subject. We do not know. However, to the extent that the dissent finds this single passage to be fatally revealing, we simply disagree, as even the members of the subcommittee considered it to be an emotional reaction, ultimately of no consequence. Notably, the subcommittee members characterized the moment in emotional terms, expressed their understanding that petitioner was too emotionally involved in this application, and encouraged him to consider being represented by counsel for his testimony on the next hearing date. Petitioner took that advice, and thereafter, was represented by Diggs. The brief incident passed with no further ramifications.

Finally, we sharply dispute the dissent’s use of another device in its apparent attempt to divert the analysis from the recent past to the very distant past. In this instance, the dissent’s goal seems to be closer to an unsubstantiated assault on petitioner’s character, rather than an objective review of actual character evidence. Petitioner’s former girlfriend’s testimony from the 1985 Staten Island trial as to which the original judgment of conviction was reversed and, with defendant’s plea, the charges were not re-tried, is an unreliable basis for reaching conclusions in this case. The dissent nevertheless, selects from the complainant’s cross examination testimony a reference to petitioner allegedly drugging and branding her during the course of their relationship. The questioning arose in the context of her description of petitioner’s alleged sexual proclivities, on a single occasion, during their relationship, although her memory was inexact as to when in mid-1982 this incident occurred. However, she also testified that she lived with petitioner during the time of this alleged “extremely horrendous” incident but choose not to move out until almost a year later, on March 15, 1983. She was also evasive when asked if she resumed working for petitioner after the alleged branding incident, and she repeatedly stated she could not recall. Yet, she testified that the alleged incident occurred in “March, April, May, [1982] something like that,” and in her earlier testimony, she worked for petitioner in June 1982. Although the girlfriend testified that she was “branded” during some form of sexual activity after being forcibly administered an unspecified drug, no other details were provided. Yet the dissent volunteers its own narrative, that is, “a mark was burned into her skin with a hot branding iron.” There is no such testimony in the record, and the circumstances surrounding this incident are unknown. For all we know, it could have been a tattoo placed on the girlfriend. We just do not know. What is clear, however, is that the girlfriend made no complaint concerning this incident, never alleged that her relationship with petitioner was abusive and thereafter continued to live with him for a significant period of time and possibly continued her employment with him. We have no reliable means of gauging whether that act ever occurred since, as noted, the testimony was elicited by defendant’s counsel on cross examination, it was not pursued further at trial, and there is no other support for the allusion to branding.

Of course, this is not a proceeding in which we employ a Molineux (People v Molineux, 168 NY 264 [1901]) analysis, but the underlying caution operating in Molineux jurisprudence, even if entirely nonbinding on our analysis in a bar admission case, nevertheless may have some value here: petitioner was not arrested nor charged with the alleged conduct, which allegedly occurred during a different time period from the shooting incident, was unrelated to the charges against petitioner, and arose in an interpersonal context unrelated to those charges. Moreover, the complainant, who necessarily was an interested witness at the criminal trial, never took steps to document any complaint of such conduct, and there is no additional support for a conclusion that it occurred, so that the reference remains unreliable as evidence.

The dissent, in this application for admission to the bar, has, yet again, totally disregarded petitioner’s extensive rehabilitative efforts and accomplishments during the 22 years since his release from incarceration and seems determined to try, or retry, petitioner for events, and even possible nonevents, that occurred decades in the past. Although we cannot categorically reject the occurrence, we simply do not have any basis to know whether it occurred, and the dissent, too, lacks any basis to assume that it happened, as described. However, the dissent seems intent on grasping at yet another straw, this time to portray petitioner as sadistic and violent. Yet, tellingly, there is no indication in the extensive record before us that petitioner has violent tendencies, other than the evidence addressing the night of the shooting which, itself, explains the lengthy duration of this case. The dissent also charges petitioner with domestic violence. By tying the complainant in the attempted murder case — who no longer had a relationship with petitioner — to a victim of domestic violence, the dissent is conflating different issues. The ex-girlfriend was a victim of attempted murder which petitioner was charged and tried. There was no charge or trial relating to the alleged and entirely undefined, “branding.” The dissent’s assertion that the jury returned a verdict based on the uncharged “branding” incident, is either disingenuous, or an attempt to skew the record, and, in either event, is entirely speculative and unsupportable.

Moreover, the impropriety of the dissent’s strategy is found not only in the improper use of the reference to branding but, more egregiously, in a footnote that impliedly links the unreliable reference to gang activity — with not one iota of evidence, nor even the existence of hearsay, with all of its unreliability, that any gang activity is even in the picture. Petitioner was once a successful operator of an illegal enterprise that sold Quaaludes, not a gang thug. Nevertheless, in a landscape of petitioner’s life that has been viewed time and time again, the dissent now seems determined to forcibly sketch in new details that simply do not fit. A second footnote reference in the dissent is drawn from Wikipedia; as of yet, Wikipedia is not recognized source material for serious jurisprudential analysis. In any event, the second footnote links branding to slavery. The point of this footnote reference is simply beyond our comprehension, unless the dissent, for some reason, is trying to inject race into a manifestly nonracial case. The dissent’s overall goal seems to be that of molding any reader’s understanding of the case in an unjustifiably prejudicial manner. We prefer to adhere to the record.

We conclude that there is no sound basis to further impede petitioner’s quest to be admitted to the bar in the jurisdiction where, in an earlier life, he violated the law. Petitioner has sufficiently shown that he possesses the requisite character and fitness for admission to the bar, and we join other jurisdictions that have admitted petitioner to practice.