Cite as: Matter of Macedonio, D37067, NYLJ 1202583879400, at *1 (App. Div. 2nd, Decided January 9 2013)

Before: Eng, P.J., Mastro, Rivera, Skelos and Dickerson, JJ.

Decided: January 9, 2013

Robert A. Green, Hauppauge, N.Y. (Michael J. Kearse of counsel), for petitioner.

Long, Tuminello, Besso, Seligman, Werner, Sullivan & Aulivola, LLP, Bay Shore, N.Y. (Michelle Aulivola of counsel), for respondent.

 

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DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. By opinion and order of this Court dated August 25, 2009, this Court disbarred the respondent based on his conviction of criminal possession of a controlled substance in the fifth degree, a class D felony, in violation of Penal Law §220.06(5), and struck his name from the roll of attorneys and counselors-at-law, effective December 9, 2008. On January 6, 2012, the Honorable James Hudson, County Court, Suffolk County, pursuant to a negotiated plea, granted the respondent's motion to vacate his felony conviction and accepted in its place a plea to criminal possession of a controlled substance in the seventh degree, in violation of Penal Law § 220.03, a class A misdemeanor. In a decision and order on motion dated April 23, 2012, this Court granted the respondent's motion to vacate the opinion and order dated August 25, 2009, and on the Court's own motion, inter alia, the respondent was immediately suspended from the practice of law pursuant to Judiciary Law §90(4)(f), as a result of his conviction of a serious

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crime, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent, the proceeding was directed to be conducted expeditiously, and the matter was referred to the Honorable Stella Schindler, as Special Referee to hear and report. By decision and order of this Court dated May 22, 2012, the Honorable Stella Schindler was relieved as Special Referee, and the Honorable Patrick A. Sweeney was appointed as Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 3, 1993, under the name Robert Anthony Macedonio.

 

PER CURIAM.

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition, dated May 4, 2012, containing one charge of professional misconduct. After a hearing, the Special Referee sustained the charge. The Grievance Committee now moves for an order confirming the Special Referee's report, and imposing such discipline as the Court deems appropriate. The respondent joins in the Grievance Committee's request for an order confirming the report of the Special Referee, and asks that his prior removal from the Bar be deemed a suspension nunc pro tunc to the date of his original plea of guilty, and that no further discipline be imposed. He also seeks immediate reinstatement to the Bar.

The sole charge alleges that the respondent engaged in illegal conduct that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of former Code of Professional Responsibility DR 1-102(a)(3) (22 NYCRR 1200.3[a][3]) and rule 8.4(b) of the Rules of Professional Conduct (22 NYCRR 1200.0). On December 9, 2008, the respondent entered a plea of guilty to one count of criminal possession of a controlled substance in the fifth degree, a class D felony, in violation of Penal Law §220.06(5). On January 6, 2012, the respondent was permitted to withdraw his previously entered plea of guilty and to enter a plea of guilty to one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, in violation of Penal Law §220.03.

In view of the respondent's admissions and the evidence adduced at the hearing,

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the charge was properly sustained.

 

In determining an appropriate measure of discipline to impose, the Court notes that the respondent has not practiced law since December 9, 2008, the date he pleaded guilty to a drug felony, more than four years ago. After completing an intensive rehabilitation program, he now stands convicted of a misdemeanor offense and remains drug free. At his disciplinary hearing, the respondent presented substantial evidence that he has successfully turned his life around and that he is fit to resume the practice of law. Given the exceptional mitigating circumstances, it is appropriate for the respondent to be suspended from the practice of law for a period of two years, effective December 9, 2008, nunc pro tunc. Moreover, given the passage of time, the nature of the hearing conducted by the Special Referee, and the evidence adduced at the hearing, it is appropriate to immediately reinstate the respondent to the Bar.

ENG, P.J., MASTRO, RIVERA, SKELOS and DICKERSON, JJ., concur.

ORDERED that the Grievance Committee's motion to confirm the Special Referee's report is granted; and it is further,

ORDERED that the respondent is suspended from the practice of law for a period of two years, effective December 9, 2008, nunc pro tunc; and it is further,

ORDERED that, effective immediately, the respondent is reinstated as an attorney and counselor-at-law and the Clerk of the Court is directed to restore the name of Robert A. Macedonio to the roll of attorneys and counselors-at-law.