For Disciplinary Purposes, “Conviction” Occurs upon Plea or Verdict
by Gary Muldoon
Muldoon & Getz
Rochester, NY 14614
When an attorney is convicted of a crime, when does the conviction occur?
Under the Criminal Procedure Law, the term “conviction” is defined as “entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument other than a felony complaint, or to one or more counts of such instrument.” CPL 1.20(13). In the context of attorney discipline matters, conviction of a felony, as classified under New York law, occurs at the time of plea or verdict. Matter of Conroy, 309 AD2d 57, 764 NYS2d 688 (1st Dept 2003); Matter of Ashdjian, 287 AD3d 217, 732 NYS2d 230 (1st Dept 2001); People v Sessler, 20 AD3d 23, 795 NYS2d 28 (1st Dept 2005); Matter of Kozlow, 29 AD3d 44, 810 NYS2d 435 (1st Dept 2006).
An attorney’s felony conviction resulted in his automatic disbarment, even though sentencing had not yet occurred. Matter of Ferrandino, 18 AD3d 116, 794 NYS2d 52 (1st Dept 2005); Matter of Chilewich, 20 AD3d 109, 795 NYS2d 232 (1st Dept 2005); Matter of Lurie, 207 AD2d 48, 621 NYS2d 300 (1st Dept 1995).
Where a guilty plea was made with the understanding that, if the attorney successfully completed the drug treatment program, the prosecutor and court would allow withdrawal of felony plea and permit the attorney to plead guilty to misdemeanor, the felony guilty plea operated to disbar the attorney. Matter of Silberman, 31 AD3d 21, 814 NYS2d 89 (1st Dept 2006).
Where an attorney pleaded guilty to felony DWI, his request to be able complete a monitoring program was denied, and he was disbarred. Matter of Shmaruk, 29 AD3d 138, 812 NYS2d 623 (2d Dept 2006). See 22 NYCRR § 691.4(m).
It should be noted that an attorney who is convicted of a misdemeanor has the obligation to report that conviction to the disciplinary committee within 30 days. Judiciary Law § 90(4)( c ); 22 NYCRR § 1022.21 (Fourth Department).
© 2008 by Gary Muldoon