Admission Denied for Failure to 'Address Criminal Past'

, New York Law Journal

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Editors' Note: This article has been updated to reflect a Correction.

 

A state appeals panel has refused to admit to the practice of law a man who was involved in a burglary during which an elderly woman was murdered, ruling that although he turned his life around after getting out of prison in 1985, he has failed to take responsibility for his crimes.

The 3-2 Appellate Division, First Department, panel ruled Thursday in Matter of Anonymous, M-1559, that while the unnamed applicant's crime did not necessarily preclude his admission to the bar by itself, he did not "adequately address his criminal past." Justices Peter Tom (See Profile), David Friedman (See Profile) and John Sweeny (See Profile) joined the unsigned majority opinion.

Justice Richard Andrias (See Profile) dissented, joined by Justice Helen Freedman (See Profile), saying that the majority's decision went against the First Department's 2012 decision to admit Neal Wiesner, an attorney previously convicted of attempted murder and other crimes (NYLJ, March 21, 2012). Tom sat on the panel in both cases.

The applicant's criminal history began in 1973, when he was arrested for selling bottles of counterfeit perfume, though the charges were later dismissed. In 1975, he was arrested for selling $21,000 worth of cocaine in at least four separate sales, but was released when he agreed to act as a confidential informant, giving police information about organized crime and drug trafficking. This information resulted in a single arrest.

In December 1975, the applicant and another person were arrested for murdering a 69-year-old woman whose apartment they burglarized. The woman suffocated to death when the two burglars put a gag around her mouth. The applicant pleaded guilty to burglary in the first degree and was sentenced to a maximum of 20 years. While in prison, he earned a bachelor's degree from New York State University/Regents College. In 1980, after serving five years of his sentence, he was released on parole. He was finally discharged in 1986.

After that, the applicant's life took what the First Department called a "commendable turn for the better." He earned a J.D. from Cardozo Law School and applied to the bar, but his first application, in 1987, was rejected because of his "lack of candor" about his criminal past, according to the majority.

In 1990, the applicant moved to renew his application. In 1994, the Committee on Character and Fitness denied his second application.

The applicant moved to renew once again in 2008. This time, a subcommittee of the Committee on Character and Fitness recommended that he be admitted, but the full committee rejected that recommendation by a 16-12 vote. The applicant then moved for the First Department to admit him despite the committee's recommendation.

The applicant's statements about his past have changed significantly over the course of his long campaign for bar admission. In 1987, he admitted that he had been arrested for "a drug sale," which he undertook only as a "favor" for a "friend." He did not disclose that he was arrested for multiple drug sales, or for selling fake perfume.

He said that his subsequent arrest for the burglary-homicide happened while he was working for the police as an informant, "assisting in an investigation of a target," implying that the target was his co-defendant in the homicide and that he was not culpable.

The applicant went on to submit a supplemental affidavit in which he explained the burglary-homicide, "[n]otably employing the passive voice," according to the First Department. He said that a gag "was placed" around the woman's mouth and that handbags "were taken." However, he said that after he and the co-defendant left, he "made up an excuse" to go back in the apartment, remove the gag and make "reasonably sure the woman was okay."

He said that his codefendant said he planned to return to the apartment to kill the victim, and that at that point, he told the police.

The First Department noted that much of the evidence contradicted the applicant's story. Most damningly, the body was found by police surveillance on Dec. 11, 1975, though the applicant claims that he told police about his codefendant's plan on Dec. 6. The autopsy of the victim showed that she was suffocated by the gag.

During his bar application process, it also emerged that the applicant had said on his law school application that he waited outside the woman's apartment while his co-defendant went inside. He admitted that this statement had been inaccurate, but again justified his behavior by saying that he was cooperating with the police.

In 1989, with his application still pending, the police who worked with him while he was an informant testified that they had specifically instructed the applicant that he could not commit any crimes, and must tell police immediately if he learned about any crime.

The applicant's defensiveness and evasiveness about his actions ultimately led the Character and Fitness Committee to deny his first two applications to the bar.

On his most recent application, he was more direct about taking responsibility. He testified that at the time of his earlier applications, he had not "forgiven [himself] for what [he] had done." He said that he was now ready to take full responsibility, though he said he was no longer "that person" who committed the crimes. He also continued to say that he went back in the apartment and removed the gag.

Tom wrote in the majority opinion that he did not believe that the applicant was truly remorseful, and therefore denied his application.

"In so doing, we take into account the applicant's seemingly unblemished personal life since his release from incarceration as well as his commendable work ethic, but we remain troubled by either his inability or his unwillingness to retreat from what seems to be a continuing defensive posture in accounting for aspects of his criminal history," Tom wrote.

"While the killing of a victim during the commission of a felony is an extremely serious crime, the factual circumstances surrounding this case make this crime more egregious. Here, a helpless and defenseless 69-year-old woman awoken from sleep in the sanctity of her home, bound and gagged, most likely dying in extreme terror of an agonizing death as she was slowly asphyxiated while her home was ransacked and property stolen, weighs heavily against conferring on the applicant the privileged legal status that he now seeks," Tom said. "We find the tragedy of the outcome in the present case to require a more exacting accountability."

Dissent Cites Precedent

Andrias, in his dissent, said the majority's opinion went against the First Department's March 2012 decision in Matter of Wiesner, 94 AD3d 167. In that decision, the court admitted a man who was convicted of dealing prescription drugs and trying, unsuccessfully, to kill his ex-girlfriend.

"Stripped of hyperbole and rhetoric, the majority is denying petitioner's application based on its belief that he has not been adequately punished for his past crimes, which include his participation in a burglary in which an elderly woman suffocated after she was gagged," Andrias wrote. "However, that is not the test we applied in Wiesner, which focuses solely on whether the applicant currently possesses the character and fitness to practice law."

"Here, petitioner has lived an exemplary life for more than 30 years since his release from prison and has shown that he is fully rehabilitated and currently possesses the requisite character and fitness for admission to the bar," Andrias said. "Nothing further can be accomplished, other than as an inappropriate punitive measure, by denying his application for admission, which poses no threat to the public."

The applicant is represented by Trevor Headley, who declined to comment.

The Committee on Character and Fitness referred a request for comment to Office of Court Administration spokesman David Bookstaver, who declined to comment.

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