July 20, 2010
Sufficient Malice To Disbar
An attorney who was charged in California with the first degree murder of his girlfriend was convicted by a jury of a lesser charge of second degree murder. He also was convicted of a firearms assault offense. He was sentenced to a 40 year prison term on the murder consecutive to a three year term for the assault.
As a result, the attorney was disbarred by operation of the conviction and struck from the rolls of the New York Appellate Division for the First Judicial Department. The court found that the California murder offense was the substantial equivalent of a New York felony:
The Committee argues that implied malice murder under the California statute is essentially similar to New York's depraved indifference murder (Penal Law § 125.25). Although an argument can be made that implied malice murder under California law is different from New York's depraved indifference murder, we need not decide that issue because, at the very least, the California statute, supported by the jury verdict, is essentially similar to the New York felony of manslaughter in the second degree (Penal Law § 125.15). Under that provision, a person is guilty of manslaughter in the second degree when "[h]e recklessly causes the death of another person." Penal Law § 15.05(3) states that "[a] person acts recklessly with respect to a result . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Implied malice murder, as interpreted by the California Supreme Court, has, at least, essentially the same mental state as reckless manslaughter in New York. Thus, under any analysis of the California statute, respondent would have committed a New York felony.
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