Friday, May 17, 2019

Prescription: Disbarment

Automatic disbarment was ordered by the New York Appellate Division for the First Judicial Department as a result of an attorney's felony drug conviction in Texas

On August 12, 2015, respondent was convicted, upon his plea of guilty, in the District Court, Burnet County in Texas, of fraudulent delivery of a controlled substance, a prescription schedule III/IV/V, in violation of Texas Health and Safety Code § 481.129(c)(1), a felony in the third degree. Respondent, a medical doctor as well as an attorney, pled guilty to "intentionally or knowingly deliver[ing] to [an individual], by actual transfer or constructive transfer, a prescription for Phentermine, for other than a valid medical purpose in the course of his professional practice." On September 22, 2015, respondent was sentenced to five years of imprisonment, which was suspended, 10 years of community supervision, which included 15 days of incarceration, and fined $1,000...

We conclude that the Texas and New York felonies are essentially similar. The Second Department addressed a comparable scenario in Matter of Miller (286 AD2d 96 [2d Dept 2001]) in which the Court found two Washington State felony convictions for delivery and attempted delivery of a controlled substance were essentially similar to the New York felonies of criminal possession of a controlled substance in the fifth degree and criminal sale of a controlled substance in the fifth degree. The Miller Court's conclusion as to the latter statute is particularly instructive since the Second Department found that a Washington conviction for the "delivery" of a controlled substance was essentially similar to the "sale" of a controlled substance under New York Penal Law § 220.31. Miller is authority that there is no material difference under New York law between criminal "sale" and unlawful "delivery" of a controlled substance.

Findings similar to Miller have been made in other cases comparable to that of respondent (see e.g. Matter of Ekperigin, 304 AD2d 133 [1st Dept 2003]; Matter of Seide, 94 AD2d 153 [1st Dept 1983]; Matter of Felsen, 40 AD3d 1257 [3d Dept 2007]; Matter of Brubaker, 293 AD2d 129 [4th Dept 2002]).

As it is a felony under both the Texas and New York statutes to unlawfully provide a third-party with a prescription for a controlled substance, automatic disbarment is warranted herein as respondent ceased to be an attorney and counselor-at-law in New York as of the date of his Texas conviction (August 12, 2015), and this Court need not reach the Committee's alternate request that respondent's conviction be deemed a "serious crime" pursuant to Judiciary Law § 90 (4) (d).

(Mike Frisch)

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