Monday, March 25, 2019

More Than Disarming

A domestic violence conviction drew a three-month suspension of an attorney by the New Jersey Supreme Court.

From the report of the Disciplinary Review Board

Following two changes of venue, the simple assault charge was tried to verdict in the Lopatcong Township Municipal Court. During the trial, S.S. testified that respondent had arrived at her residence to pick up their two children, as was their customary practice in connection with his weekend parenting time. Rather than promptly leave, respondent lingered, checking the children’s homework in her garage, so that he could leave their book bags at her house. A verbal argument ensued between R.S. and respondent in the garage, which escalated into a physical altercation. S.S. testified that, after her mother, R.S., told respondent to leave, respondent said "f--- you" and punched R.S. in the face. S.S. intervened, picking up a long-handled ice chipper and confronted respondent, in the driveway, in an attempt to persuade him to leave her property. According to S.S., respondent pulled the ice chipper from her hands and hit her in the head with it, causing her to fall to the ground and to temporarily lose consciousness. S.S. testified that she then called the police.

Respondent, representing himself at the municipal court hearing, established, through his cross-examination of S.S., that he had exited the garage before S.S. confronted him, in the driveway, with the ice chipper. He also emphasized that S.S. had prior martial arts training.

During his testimony, respondent admitted that a physical altercation had occurred, in the garage, between him and R.S. He claimed that he then retreated to the driveway to call the police, when S.S. confronted him with the ice chipper and swung it at him multiple times. He claimed that S.S. landed a blow to his ribs, at which point he hit her in the face, in order to "disarm" her, and she fell to the ground, striking her forehead. R.S. did not testify at the municipal court trial.

In an effort to impugn S.S.’s credibility, respondent admitted into evidence transcripts of her prior sworn testimony from a grand jury proceeding and a final restraining order hearing. The prosecution admitted five photos showing the injuries that S.S. had sustained during the altercation with respondent.

The trial court found him guilty of two counts of simple assault.

The Office of Attorney Ethics conceded that double jeopardy barred one count.

DRB proposed sanction

In crafting the appropriate term of suspension, we also consider aggravating and mitigating factors. In aggravation, respondent committed the criminal act against his ex-wife, in front of their children. Then, he failed to report his indictment, as R. 1:20-13(a)(1) requires. In mitigation, respondent has no disciplinary history. On balance, we see no reason to deviate from the three-month prospective suspension generally imposed on attorneys who commit acts of domestic violence. Such a sanction protects the public and preserves confidence in the bar.

(Mike Frisch)

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