Tuesday, March 29, 2011

Cocaine, Cooking And Reinstatement

The New York Appellate Division for the First Judicial Department imposed a three-year suspension of an attorney, with credit for time served since 2004. As a result, the attorney was reinstated.

 The misconduct:

In 1999, while still practicing law, respondent bought a building with a restaurant, which he named Chameleon. In late 2000, respondent started to cook at the restaurant at night while practicing law during the day. In early 2003, Victor Maldonato began coming to Chameleon's bar and offered respondent cocaine, which he accepted. Over time, respondent's drug use escalated and Victor started to sell drugs on the premises, allegedly soliciting sales inside Chameleon and making them outside. Respondent claims that he never profited from these sales.

As his addiction worsened, respondent allegedly realized that his life had become unmanageable and he tried to sell Chameleon. In September 2003, he opened a second restaurant called Onyx, where he was executive chef. In early 2004, before the proposed sale of Chameleon could be closed, the police raided the restaurant. Respondent was arrested a few weeks later.

On November 9, 2004, respondent pleaded guilty to the sixth count of an indictment accusing him and Dominic Sclafani of criminal sale of a controlled substance in the third degree [Penal Law ยง 220.39(1)], a class B felony.

The attorney was disbarred as a result of the conviction. The conviction was later vacated and the felony charges were dismissed. The attorney then sought immediate reinstatement.

As to sanction:

Contrary to the Hearing Panel's finding, when respondent testified before the Committee he patently recanted this admission [in the criminal case]. When asked if he knew Sclafani, respondent replied that he was "a patron of the restaurant." When asked if he sold or attempted to sell a controlled substance with Sclafani on February 24, 2004, he replied: "No, I did not. No, I did not." When asked if Sclafani attempted to sell a controlled substance that day, respondent replied: "I don't know."

These responses were part and parcel of respondent's attempt to distance himself from the admission at his allocution that he and Sclafani knowingly and unlawfully sold cocaine to a police officer by claiming that he only felt responsible for the drug sales because he allowed them to occur in his bar. Although respondent admitted that Victor had brought his friends to the bar and it "became a haven for people hanging out buying drugs, doing drugs", and that Victor sold drugs, respondent repeatedly denied that he himself was involved in selling the drugs. Respondent also denied knowing whether Victor and Kjiel Lucas, individually or in concert, sold a controlled substance in the bar on December 16, 2003, December 30, 2003, and February 23, 2004, January 14, 2004 and February 24, 2004, as charged in counts one through five and seven of the indictment. He similarly denied selling a controlled substance with Lucas on February 25, 2004 and March 9, 2004, as charged in counts eight, nine, ten and eleven of the indictment. Indeed, respondent denied knowing Lucas and testified that the police just "sort of linked" his name to Lucas in the counts charging the two of them with sales.

By deliberately recanting his plea and dissembling, under oath during a deposition before the Committee, his role in the drug activities that took place in his bar, respondent deliberately and intentionally engaged in deception and failed to cooperate with the Committee...

As to the appropriate sanction, respondent has not practiced law since at least November 9, 2004, the date he pleaded guilty to a drug felony, over six years ago. After completing an intensive drug rehabilitation program, he now stands convicted of a misdemeanor offense and remains drug free. Respondent has presented substantial and impressive evidence that he has successfully turned his life around and that he is fit to resume the practice of law. In mitigation, respondent testified that subsequent to his completion of the ASPIRE drug treatment program he sold his interest in Onyx and opened a successful, family-style sandwich shop in the Union Square area. Respondent created a not-for-profit organization providing work training at that shop for older high school students; he provides assistance to recovering drug addicts through Beth Israel Hospital; he has provided free meals to the homeless during the holiday season, and he has engaged in other community activities.

In addition, at the hearing, Donna Boundy of the Daytop drug rehab program testified that respondent was a "stand out," that he had a great attitude, was remorseful and motivated, that he was given great trust by the program insofar as he was given the responsibility of escorting other residents outside the facility, and that during a kitchen incident, respondent attempted to spare other residents from any injury by spilling sauce over himself instead. Numerous character letters were also submitted noting respondent's strong work ethic and teaching skills, and that respondent has included his shop in the internship/mentoring program, as well as respondent's involvement as a guest speaker and panelist at student events and competitions.

Given the passage of time and these exceptional mitigating circumstances, the Hearing Panel's recommendation that respondent be suspended nunc pro tunc from November 9, 2004, and that his suspension should be limited to "time served," is appropriate (see Matter of Keiser, 304 AD2d 96 [2003]). Notwithstanding petitioner's troubling and disingenuous recantation and our belief that Charges 2 and 3 should also be sustained, in light of the present posture of this matter, the Hearing Panel is correct that it would serve no purpose to further delay respondent's reinstatement by requiring further proceedings...

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/03/the-new-york-appellate-division-for-the-first-judicial-department-imposed-a-three-year-suspension-of-an-attorney-the-miscond.html

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