Matter of Hennessey

Appellate Division of the Supreme Court of New York

Matter of Hennessey

138 A.D.3d 1230, 29 N.Y.S.3d 645, 2016 NY Slip Op 02705

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 7, 2016

DocketD-20-16

StatusPublished

Cited by1 cases

This text of 138 A.D.3d 1230 (Matter of Hennessey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Hennessey, 138 A.D.3d 1230, 29 N.Y.S.3d 645, 2016 NY Slip Op 02705 (N.Y. Ct. App. 2016).

Pincite

Opinion

Per Curiam.

In 2012, respondent was convicted, upon his plea of guilty, of two felony counts of aggravated harassment in the second degree as a hate crime (see generally People v Hennessey, 111 AD3d 1166 [2013]). Upon said conviction, respondent was automatically disbarred from the practice of law (see Judiciary Law § 90 [4] [a], [e]; Matter of Barash, 20 NY2d 154, 157 [1967]). This Court’s subsequent acceptance of respondent’s resignation from practice (95 AD3d 1501 [2012]) was therefore superfluous (see Matter of Sanderson, 119 AD3d 1318, 1318 [2014]), but the order nonetheless accomplished the *1231 formality of striking respondent’s name from the roll of attorneys (see Judiciary Law § 90 [4] [b]).

In December 2014, respondent’s criminal convictions were vacated by Albany County Court (Herrick, J.) on the sole basis that the underlying crimes were held to be unconstitutional by the Court of Appeals in an unrelated case (see People v Golb, 23 NY3d 455, 466-468 [2014]). Respondent thereafter moved for reinstatement to the practice of law. Petitioner opposed the application on the basis that the criminal proceedings and disbarment had forestalled any earlier investigation and that such was necessary given that respondent’s guilty plea had not been vacated, nor was he acquitted of the factual allegations underlying the criminal proceedings. By June 29, 2015 confidential order, this Court thereafter directed petitioner “to expeditiously commence an investigation pursuant to Rules of the Appellate Division (22 NYCRR) § 806.4 and determine whether a proceeding pursuant to Rules of the Appellate Division, Third Department (22 NYCRR) §§ 806.5 and/or 806.10 is warranted” (see generally Matter of Barash, 20 NY2d at 158-159). This Court further directed that respondent’s application for reinstatement be held in abeyance pending the resolution of any proceeding commenced by petitioner concerning respondent.

Subsequently, petitioner undertook its investigation, conducted an examination of respondent at its offices and authorized, among other things, commencement of a proceeding pursuant to Rules of the Appellate Division, Third Department (22 NYCRR) § 806.5. Petitioner thereafter filed a petition of charges, dated January 19, 2016, alleging that respondent engaged in conduct adversely reflecting on his fitness as a lawyer, deceptive conduct and conduct prejudicial to the administration of justice. In lieu of filing an answer, respondent now moves to dismiss the petition of charges on the basis of insufficiency and for reinstatement. Petitioner opposes this motion and cross-moves to unseal respondent’s criminal record. *

Respondent’s motion to dismiss is founded primarily on his claim that the petition of charges is impermissibly based upon information and statements obtained from respondent’s “now sealed criminal case.” However, as this Court indicated in its June 2015 order directing commencement of the subject investigation, CPL 160.50 (1) (c) permits review of the record on appeal previously submitted to this Court in conjunction *1232 with People v Hennessey (supra). Accordingly, we find no basis to grant respondent’s pre-answer motion to dismiss the petition of charges. Moreover, given the availability of respondent’s appellate record for petitioner’s inspection, “an order unsealing the records is unnecessary” (Matter of Keeffe, 76 AD2d 416, 418 [1980]). Consequently, we further deny, as unnecessary, petitioner’s cross motion to order the formal unsealing of the records sealed by County Court pursuant to CPL 160.50.

McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur.

Ordered that respondent’s motion is denied; and it is further ordered that petitioner’s cross motion is denied, as unnecessary. Ordered that respondent is permitted to serve an answer to the January 19, 2016 petition of charges within 20 days of the date of this Court’s decision.

*

Prior to oral argument on the cross motions, respondent submitted a written waiver of confidentiality.

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Per Curiam.

In 2012, respondent was convicted, upon his plea of guilty, of two felony counts of aggravated harassment in the second degree as a hate crime (see generally People v Hennessey, 111 AD3d 1166 [2013]). Upon said conviction, respondent was automatically disbarred from the practice of law (see Judiciary Law § 90 [4] [a], [e]; Matter of Barash, 20 NY2d 154, 157 [1967]). This Court’s subsequent acceptance of respondent’s resignation from practice (95 AD3d 1501 [2012]) was therefore superfluous (see Matter of Sanderson, 119 AD3d 1318, 1318 [2014]), but the order nonetheless accomplished the *1231 formality of striking respondent’s name from the roll of attorneys (see Judiciary Law § 90 [4] [b]).

In December 2014, respondent’s criminal convictions were vacated by Albany County Court (Herrick, J.) on the sole basis that the underlying crimes were held to be unconstitutional by the Court of Appeals in an unrelated case (see People v Golb, 23 NY3d 455, 466-468 [2014]). Respondent thereafter moved for reinstatement to the practice of law. Petitioner opposed the application on the basis that the criminal proceedings and disbarment had forestalled any earlier investigation and that such was necessary given that respondent’s guilty plea had not been vacated, nor was he acquitted of the factual allegations underlying the criminal proceedings. By June 29, 2015 confidential order, this Court thereafter directed petitioner “to expeditiously commence an investigation pursuant to Rules of the Appellate Division (22 NYCRR) § 806.4 and determine whether a proceeding pursuant to Rules of the Appellate Division, Third Department (22 NYCRR) §§ 806.5 and/or 806.10 is warranted” (see generally Matter of Barash, 20 NY2d at 158-159). This Court further directed that respondent’s application for reinstatement be held in abeyance pending the resolution of any proceeding commenced by petitioner concerning respondent.

Subsequently, petitioner undertook its investigation, conducted an examination of respondent at its offices and authorized, among other things, commencement of a proceeding pursuant to Rules of the Appellate Division, Third Department (22 NYCRR) § 806.5. Petitioner thereafter filed a petition of charges, dated January 19, 2016, alleging that respondent engaged in conduct adversely reflecting on his fitness as a lawyer, deceptive conduct and conduct prejudicial to the administration of justice. In lieu of filing an answer, respondent now moves to dismiss the petition of charges on the basis of insufficiency and for reinstatement. Petitioner opposes this motion and cross-moves to unseal respondent’s criminal record. *

Respondent’s motion to dismiss is founded primarily on his claim that the petition of charges is impermissibly based upon information and statements obtained from respondent’s “now sealed criminal case.” However, as this Court indicated in its June 2015 order directing commencement of the subject investigation, CPL 160.50 (1) (c) permits review of the record on appeal previously submitted to this Court in conjunction *1232 with People v Hennessey (supra). Accordingly, we find no basis to grant respondent’s pre-answer motion to dismiss the petition of charges. Moreover, given the availability of respondent’s appellate record for petitioner’s inspection, “an order unsealing the records is unnecessary” (Matter of Keeffe, 76 AD2d 416, 418 [1980]). Consequently, we further deny, as unnecessary, petitioner’s cross motion to order the formal unsealing of the records sealed by County Court pursuant to CPL 160.50.

McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur.

Ordered that respondent’s motion is denied; and it is further ordered that petitioner’s cross motion is denied, as unnecessary. Ordered that respondent is permitted to serve an answer to the January 19, 2016 petition of charges within 20 days of the date of this Court’s decision.

*

Prior to oral argument on the cross motions, respondent submitted a written waiver of confidentiality.

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138 A.D.3d 1230, 29 N.Y.S.3d 645, 2016 NY Slip Op 02705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-hennessey-nyappdiv-2016.

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