Friday, February 10, 2012

Lengthy Suspension For Domestic Violence

The New York Appellate Division for the First Judicial Department has ordered a suspension of three years for the following misconduct:

Respondent's criminal conviction stems from an argument that he had with the complainant, his former girlfriend, in her apartment on October 4, 2007. During the encounter, respondent repeatedly threw the complainant to the floor and slapped her about the face, causing physical injuries that required medical attention. During the assault, respondent called the complainant such derogatory names as "slut" and "whore". Respondent also destroyed or damaged various items of the complainant's personal property, including a Cartier watch that he smashed with a hammer, a purse that he filled with water, a painting that he punctured, and a couch that he damaged with water and oil.

The court described the proceedings below:

A hearing was...conducted before a Referee. Respondent testified on his own behalf, taking full responsibility for his actions and admitting that he "always had a temper," but that he began therapy counseling shortly after his arrest and has continued to undergo therapy ever since. The Referee also heard testimony from respondent's treating psychotherapist who explained the violence as a result of an "intermittent explosive disorder," for which respondent is now being treated. By report and recommendation, the Referee sustained charges one and two. The Referee dismissed charge three finding that the destruction of the complainant's property "occurred at the same time as the assault and was part of the same course of conduct." With respect to the Committee's recommendation for a sanction of no less than a one-year suspension, the Referee acknowledged that respondent committed a serious act of domestic violence but, referring to the six months respondent spent in jail and his full restitution of the property damage, reasoned that "he has already paid a heavy price." The Referee concluded that respondent's misconduct warranted a 60-day suspension.

A Hearing Panel confirmed the Referee's findings that sustained charges one and two. The Hearing Panel disaffirmed the dismissal of charge three, finding that respondent's violent act in smashing the complainant's watch with a hammer, gouging a painting, and pouring water in her pocketbook was not the same act as the assault, as the Referee had concluded, but rather "an escalation" of it.

In considering the appropriate sanction, the Hearing Panel, with one panel member dissenting, confirmed the Referee's recommendation of a 60-day suspension. The Hearing Panel majority acknowledged that in determining the appropriate sanction to impose for respondent's misconduct, the Referee relied on Matter of Caits (77 AD3d 165 [2010]), in which this Court upheld a public censure of an attorney convicted of attempted assault in the third degree and harassment. However, the Panel recognized that "there is a qualitative difference between the level of violence of [r]espondent's assault on his former girlfriend in her own home [for] at least 45 minutes, provoked if at all by the knowledge that she was seeing someone else, and the particular circumstances of [the respondent in] Caits, a member of the bar for many years with a previously unblemished record, who got into a fight in a restaurant with a stranger who apparently had refused to lower the volume on her portable DVD player after Caits had complained to the management." The Panel also took issue with the Referee's finding that there was no other history of domestic violence, given that respondent admitted in his direct testimony at the Referee's hearing that there had been a prior episode in August 2006, when he "pushed" the complainant to the ground during an argument. Nevertheless, the Hearing Panel deferred to the Referee's judgment.

The court here clearly found the proposed sanction woefully inadequate given the conduct. (Mike Frisch)

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