Wednesday, March 7, 2018

Suspended In Ohio; Disbarred In New York

An Ohio criminal conviction led to summary disbarment by the New York Appellate Division for the Second Judicial Department

On October 31, 2014, following a jury trial before the Honorable Kimberly Brown in the Court of Common Pleas, Franklin County, Ohio, the respondent was found guilty of sexual battery, in violation of Ohio Revised Code § 2907.03, a felony in the third degree.

Analysis

Ohio Revised Code § 2907.03 defines “sexual battery” as, among other things, sexual conduct with another when “(2) [t]he offender knows that the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired,” or “(3) [t]he offender knows that the other person submits because the other person is unaware that the act is being committed.” “Sexual conduct” is defined under Ohio Revised Code § 2907.01(A) as “vaginal intercourse between a male and female, anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”

The Ohio offense of sexual battery is essentially similar to Penal Law § 130.65, sexual abuse in the first degree, a class D felony, which provides that “[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact: 1. By forcible compulsion; or 2. When the other person is incapable of consent by reason of being physically helpless.” The “physically helpless” element of the offense of sexual abuse in the first degree, which is defined under Penal Law § 130.00(7) to describe “a person [who] is unconscious or for any other reason is physically unable to communicate unwillingness to an act,” is essentially similar to the elements of the Ohio offense, either the requirement that “the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired” (Ohio Revised Code 2907.03[A][2]), or that “the other person is unaware that the act is being committed” (Ohio Revised Code § 2907.03[A][3]). The “sexual contact” element of the offense of sexual abuse in the first degree, which is defined under Penal Law § 130.00(3) as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying [the] sexual desire of either party,” is essentially similar to the “sexual conduct” element of the Ohio offense.

Dan Trevas reported on the Ohio Supreme Court's disposition.

The Ohio Supreme Court today suspended a central Ohio attorney for two years after he was convicted of sexual battery in March 2015.

The Court voted 5-2 to suspend Kenneth J. Warren of Dublin and to deny him any credit for the time he served under an interim suspension that started the month of his conviction. The per curiam opinion noted that Warren and the Office of Disciplinary Counsel entered a “consent-to-discipline agreement,” which granted no credit for time already served.

Warren Had Sexual Contact with Friend

In the discipline agreement, the parties stipulated that in 2013 a female friend joined Warren for dinner at his home with plans to stay overnight. After dinner, the woman lay down to sleep because she had taken some pain medication. Unaware that she had taken medication, Warren gave her a sleeping pill.

At some point in the night, Warren removed the woman’s pajamas, and she awoke to him having sexual contact with her. She told him to stop, but due to the medication, she fell back asleep and was unaware whether further sexual contact occurred. In 2014, a jury found Warren guilty of sexual battery, but acquitted him of rape. He was sentenced in 2015 to 30 months of community control and ordered to stay away from the victim, to complete a sex-offender treatment program, and to pay a $2,500 fine plus court costs.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/03/an-ohio-criminal-conviction-led-to-summary-disbarment-by-the-new-york-appellate-division-for-the-second-judicial-department.html

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