Bar Discipline Imposed

The New York Appellate Division for the First Judicial Department imposed a two-month suspension of an attorney convicted of crimes committed in a bar. 

In 2015, respondent was convicted of criminal obstruction of breathing or blood circulation and assault in the third degree (two misdemeanors) and harassment in the second degree (a violation). In 2017, the Attorney Grievance Committee commenced this proceeding by filing a petition alleging that respondent violated Rules of Professional Conduct (22 NYCRR 1200.00) rule 8.4(b) (illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer) and rule 8.4(h) (conduct that adversely reflects on his fitness as a lawyer). Thereafter, respondent submitted an answer admitting liability to the charges (Rules of Professional Conduct [22 NYCRR 1200.0] rules 8.4[b] and [h]) and the parties filed a joint statement of undisputed facts. In light of respondent's admissions to liability, this Court accepted the parties' joint statement of facts and appointed a Referee for a hearing limited to sanction only. Following a hearing, the Committee sought imposition of a one-year suspension while respondent urged a private sanction. By report dated July 10, 2019, the Referee recommended private discipline be imposed.

The facts

Respondent's criminal conviction arose from his assault on a woman at a bar. Respondent had been drinking heavily for many hours. While highly intoxicated and searching for his coat at the bar in order to leave, respondent touched the complainant's coat. Complainant, who had also been drinking, was seated in the bar with friends, and when she saw respondent touch her belongings, she yelled at him to stop. After a verbal altercation with the complainant, which included respondent's use of derogatory language, respondent placed his hands on her shoulders and/or upper arms. Almost immediately, one of the complainant's male friends stepped between them. Respondent appeared to remain calm while the friend spoke to him before a mutual friend came over and respondent walked away.

Around 5 to 10 minutes later, respondent returned to the area at which point the complainant immediately jumped up from her chair, confronted respondent and started yelling at him. When respondent held out his outstretched hands towards the complainant, she stopped them, almost as if she were swatting them away, before he seemed to stumble. According to respondent, the complainant hit him in the eye with her arm, causing him a black eye, when she pushed his outstretched hands away from her. The complainant then threw a beer at respondent and the assault occurred. The parties' joint stipulation of facts summarized the assault as follows: "[r]espondent knocked [complainant] against a railing, tackled her to the floor, kneeled on top of her, grabbed her neck and struck her in the face."

He was convicted at a non-jury trial.

Sanction

At the sanction hearing, the complainant, respondent and three character witnesses testified. The complainant testified that she dealt with both physical and severe emotional consequences following the assault. Respondent testified that he benefitted greatly from the alcohol abuse treatment program he enrolled in, that he continued to suffer repercussions due to his actions but that he understood he was responsible for his actions. The character witnesses' [*3]testimonies painted a very favorable picture of respondent, that he was a hard worker and a role model for younger attorneys, that he was sensitive and thoughtful and not a violent or aggressive person and that respondent had been drinking heavily at that time in his life but that he had now stopped. A joint stipulation of facts and a video from the security camera at the bar where the altercation occurred were also submitted at respondent's EUO before the Committee.

The Referee was not convinced that respondent had accepted the degree to which his actions had affected the complainant, which was based, in large part, on the Referee's finding that respondent had not issued a sincere, direct apology to the complainant. However, the Referee concluded that, based on the time that had passed, his belief that respondent would not have assaulted the complainant had he not been drunk and that respondent had turned his life around by stopping drinking and taking upon the burden of raising a family, a private sanction would be appropriate.

In ordering the appropriate sanction, we consider the seriousness of respondent's assault. Respondent's misconduct of drinking heavily and assaulting a woman in a bar is disturbing and was appropriately the subject of criminal proceedings. However, we also consider that respondent has accepted responsibility for his misconduct, has expressed sincere remorse, cooperated with the Committee and has an unblemished disciplinary history. Moreover, the character witnesses' universal opinion regarding the aberrational nature of respondent's behavior and his otherwise good character and fitness to practice are compelling.

The New York Daily News reported on the criminal sentence.

A former Manhattan assistant district attorney was sentenced to alcohol abuse counseling and ten days of community service for choking a woman at a bar after a party last Halloween — even though prosecutors had asked that he be locked up for 60 days.

But Eli Cherkasky, 35, was spared serving jail time after he apologized for his conduct early on Nov. 1, 2014, at Failte Bar in Murray Hill, saying it was "unacceptable in every way."

"I drank too much and exercised poor judgment. I engaged when I shouldn't have engaged," said Cherkasky, who handled several high-profile cases before his arrest.

"It was conduct unbecoming of a 35-year-old man, unbecoming of the family that raised me and I love and respect so much, and unbecoming of an assistant district attorney."

(Mike Frisch)