Thursday, February 20, 2014

40 Year Old Conviction Prevents Bar Admission

The New York Appellate Division for the First Judicial Department has denied an application for bar admission of an applicant who had a lengthy criminal record that culminated in a death.

This was the third application dating back to 1985.

The court

The applicant's criminal record dating back to the 1970s shows someone who gravitated to society's underside before escalating to crimes that culminated in the brutal death of an elderly woman. Although this criminal history, now several decades old, would not itself be a dispositive consideration as we evaluate the present application, it nevertheless provides something of a template for our analysis of his character and moral fitness. A renewal applicant does not get to wipe the slate clean, so to speak, simply by the passage of time for purposes of our subsequent review. Regardless whether the crime was committed recently or years ago, the applicant was required to adequately address his criminal past.

In order to evaluate his present character for these purposes, it is important to look into why his initial application for admission to the bar was unsuccessful, and to use the record of that proceeding, which necessarily incorporated his criminal record, as a baseline for measuring his rehabilitation as well as his credibility and acknowledgment of responsibility with respect to the current application.

The court recounts the applicant's criminal history leading up to this

On December 12, 1975, 38 years ago, the applicant and a codefendant were arrested for murdering a 69-year-old woman whose apartment they burglarized. This arrest and the applicant's subsequent conviction will be further described below insofar as the applicant's explanation of his participation has a continuing bearing on our decision to reject his application. After separate trials, the codefendant was convicted of murder in the second degree and sentenced to 15 years to life, although his conviction was later reversed by the Court of Appeals on the basis that his statement had been unlawfully obtained. The codefendant pleaded guilty to robbery in the first degree and thereby avoided a retrial. Faced with a murder charge and his own inculpatory statement as to which suppression had been denied, the applicant pleaded guilty to burglary in the first degree and was sentenced to a maximum term of 20 years. The Second Department affirmed the judgment. He served five years of the sentence and was released to parole supervision in 1980, and received a final discharge from parole in 1986.


From that point, the applicant's personal history took a commendable turn for the better. Making beneficial use of his time after his release, he attended law school and received a J.D. degree in 1985. After passing the bar examination, however, his 1987 application for admission was rejected in substantial part because of his lack of candor and veracity in acknowledging his criminal past, especially about his drug sales and his actions during the burglary that led to the victim's death.

The court describes the path of the various application efforts and agrees with its Committee on Character and Fitness that admission is not appropriate

..,.the application founders principally on two factors. While the killing of a victim during the commission of a felony is an extremely serious crime, the factual circumstances surrounding this case make this crime more egregious. Here, a helpless and defenseless 69-year-old woman awoken from sleep in the sanctity of her home, bound and gagged, most likely dying in extreme terror of an agonizing death as she was slowly asphyxiated while her home was ransacked and property stolen, weighs heavily against conferring on the applicant the privileged legal status that he now seeks. We find the tragedy of the outcome in the present case to require a more exacting accountability.

Secondly, in explaining that death as well as other aspects of his criminal record, the applicant also has displayed a pattern of shifting the blame away from himself. Even if recently he seemed more inclined to accept responsibility, he seemed to do so almost as a matter of formal rote, for criminal conduct that he had freely undertaken. That pattern was most visibly on display for the earlier phase of his application history, and we necessarily look more particularly at his more recent testimony. Yet, we still cannot avoid the observation that the applicant continues to evade a candid and complete acknowledgment of his responsibility for the events that comprise his criminal history. That equivocation diminishes the candor necessary to support this application.

Justice Andrias dissented and would admit

Stripped of hyperbole and rhetoric, the majority is denying petitioner's application based on its belief that he has not been adequately punished for his past crimes, which include his participation in a burglary in which an elderly woman suffocated after she was gagged. However, that is not the test we applied in Wiesner, which focuses solely on whether the applicant currently possesses the character and fitness to practice law. Applying that test, although the nature and character of the crimes committed by petitioner raise serious concerns, petitioner's consistent behavioral pattern of responsibility and societal contributions over the past 32 years, and hisadmissions in his current application and before the subcommittee that he is responsible for his past criminal acts and for his lack of candor in his prior applications, clearly and convincingly demonstrate that petitioner's personal reform and rehabilitation are genuine and complete. Accordingly, because petitioner currently possesses the requisite character and fitness for admission to the bar, I dissent and would grant the application.

(Mike Frisch)

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