Matter of Villanueva

Appellate Division of the Supreme Court of New York

Matter of Villanueva

2016 NY Slip Op 7878

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

DecidedNovember 22, 2016

DocketM-3961

StatusPublished

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Matter of Villanueva, 2016 NY Slip Op 7878 (N.Y. Ct. App. 2016).

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Opinion

Matter of Villanueva (2016 NY Slip Op 07878)

Matter of Villanueva

2016 NY Slip Op 07878

Decided on November 22, 2016

Appellate Division, First Department

Per Curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2016 SUPREME COURT, APPELLATE DIVISION First Judicial Department
Peter Tom, Justice Presiding,
John W. Sweeny, Jr.
Richard T. Andrias
Troy K. Webber
Ellen Gesmer, Justices.

M-3961

[*1]In the Matter of Gary S. Villanueva, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Gary S. Villanueva, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Gary S. Villanueva, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on June 18, 1984.

Jorge Dopico, Chief Counsel, Departmental

Disciplinary Committee, New York

(Remi E. Shea, of counsel), for petitioner.

Respondent pro se.

PER CURIAM

Respondent Gary S. Villanueva was admitted to the practice of law in the State of New York by the First Judicial Department on June 18, 1984. Respondent maintains an office for the practice of law within the First Department.

By order and opinion of December 1, 2015, the United States Court of Appeals for the Second Circuit publicly reprimanded respondent based on his defaults in four criminal appeals (633 Fed Appx 1 [2d Cir 2015]).

By notice of petition dated August 8, 2016, the Departmental Disciplinary Committee [*2]moves, pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) § 603.3, for an order imposing reciprocal discipline upon respondent in the form of a public censure, the equivalent of a public reprimand in the Second Circuit, or, in the alternative, imposing whatever sanction this Court deems appropriate. Respondent, pro se, consents to the imposition of reciprocal discipline but requests that it be no greater than a public censure.

By order of March 19, 2015, the Second Circuit's Grievance Panel directed respondent to show cause why disciplinary or other corrective measures should not be imposed on him based on his defaults in four criminal appeals. Respondent submitted an untimely response, which the court accepted, in which he asserted that his defaults were attributable to, inter alia, personal and professional tragedies, namely, in 2009, the attorney with whom he shared office space and professional expenses suffered a fatal heart attack which resulted in financial and administrative strain in that he was forced to, among other things, close out his friend's law practice, lay off support staff, and relocate his law office; in 2010, he was preoccupied with his parents' medical care, both of whom were seriously ill and later died in rapid succession, leaving him grief stricken; and in the midst of his grief over his parents' deaths his closest surviving relatives, an aunt and uncle, both died.

Respondent admitted to a lack of "administrative diligence" on his part but averred that his grief has become more manageable with the passage of time; and he has implemented reforms to his law practice which included hiring an assistant experienced in federal appellate procedure. Respondent did not request a hearing pursuant to Second Circuit Local Rule 46.2(b)(3)(D).

In the first case, respondent represented defendant Gomez- Lopez in his appeal from a judgment sentencing him to, inter alia, 120 months' imprisonment ^[FN1]. After Gomez-Lopez filed a pro se notice of appeal, respondent was contacted four times by the court regarding his failure to file a Form B (a criminal appeal transcript information form), as required by its local rules. After the first call, a default order was entered threatening dismissal unless the Form B was filed by the deadline specified therein. Although respondent did not comply, Gomez-Lopez' appeal was not dismissed. After the fourth call from court personnel, upon respondent's motion, new counsel was appointed to represent Gomez-Lopez.

Respondent explained that he was concerned that Gomez- Lopez' appeal could possibly expose him to a higher sentence; thus, after consideration, he filed a motion to withdraw so that new counsel could fully examine the potential risks of an appeal and the effectiveness of his representation. He admitted that he did not file a Form B, as required, but stated that his delay in moving to withdraw did not prejudice Gomez-Lopez. Ultimately, Gomez-Lopez withdrew his appeal and has not pursued postconviction relief based on respondent's performance.

The court found respondent's response deficient in that he did not explain his failure to respond to three telephone messages from court personnel, nor his failure to request either an extension of time to file a Form B or a stay of Gomez-Lopez' appeal while he examined its potential risks. In addition, respondent did not address the court's default order threatening dismissal of the appeal, nor the fact that he did not move to withdraw until three weeks after the deadline for filing a Form B had passed. The court opined that respondent's defaults and dilatory conduct potentially prejudiced Gomez-Lopez in that his appeal could have been dismissed.

In the second case, respondent represented defendant Guerino in his appeal from a judgment sentencing him to, inter alia, 44 years imprisonment. As in the Gomez-Lopez case, respondent failed to file a Form B; on three occasions he failed to respond to communications from court personnel regarding his failure to file required forms; two default orders were entered threatening dismissal if he did not file the missing forms; and the appeal was dismissed based on his default. The appeal was later reinstated, and new counsel assigned, but only after Guerino [*3]wrote to the court and complained about respondent's representation.

As to defendant Guerino, respondent explained that his decision making was adversely affected by his family issues and the fact that he was overwhelmed by three other criminal trials; and as Guerino's conviction was affirmed he was not prejudiced by the defaults. The court found respondent's response deficient in that he did not specifically address, inter alia, his failure to respond to court personnel; the fact his defaults resulted in dismissal of the appeal; Guerino's complaints as to his representation; or how his other professional commitments prevented communication with the court and compliance with its orders. The court found respondent's assertion that Guerino was not prejudiced by his defaults to be disingenuous, given that it was Guerino, not respondent, who requested reinstatement of the appeal.

In the third case, respondent represented defendant Phillips in his appeal from a judgment sentencing him to, inter alia, 96 months' imprisonment. Phillips filed his own notice of appeal because respondent purportedly failed to do so, despite being so instructed. Thereafter, respondent defaulted several times which resulted in dismissal of Phillips' appeal.

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