In re Application of Wiesner

Citation2012 N.Y. Slip Op. 02069,94 A.D.3d 167,943 N.Y.S.2d 410
PartiesIn the Matter of the Application of Neal Eugene WIESNER, For Admission as an Attorney and Counselor-at-law.
Decision Date20 March 2012
CourtNew York Supreme Court Appellate Division
OPINION TEXT STARTS HERE

The Committee on Character and Fitness for the First Judicial Department. Maria M. Matos, Executive Secretary to the Committee on Character and Fitness.Ariyike Oshunkoya Diggs, for petitioner.

PETER TOM, Justice Presiding, ANGELA M. MAZZARELLI, DAVID B. SAXE, SALLIE MANZANET–DANIELS, NELSON S. ROMÁN, Justices.

TOM, J.

Petitioner, a twice-convicted felon, submitted his tenth renewed application to the Committee on Character and Fitness for admission to the bar. The unusual and lengthy history of petitioner's efforts to gain admission to the New York bar has been affected by differing views of whether petitioner has the moral character and fitness to practice law. The impediment to approval has been the serious crimes committed by petitioner years ago. In prior applications, we judged the passage of time to be insufficient to evaluate the success and sincerity of his rehabilitation.

The salient events and ensuing criminal trial conducted over a quarter century in the past can be briefly summarized. Principally, petitioner was convicted in federal court in connection with his operation of a business from about 1980 to 1982 that had the appearance of legality but which was actually an illegal enterprise for distribution of Quaaludes. Petitioner ran putative sleep clinics where he would direct drug purchasers to physicians participating in the scheme, who would then write prescriptions for the purchasers, which would be filled by participating pharmacies. The scheme was both extensive and financially successful and allowed petitioner to lead a flamboyant lifestyle, including his own extensive drug use. However, his life increasingly spiraled out of control and, as federal authorities closed in, he entered into a despondent emotional state that manifested itself in criminal acts committed in July 1983 against his former girlfriend, who also was involved in the drug distribution scheme. Although the girlfriend had separated from petitioner and moved out months earlier, she yielded to his request to see her again. When they met, he displayed a gun and kept her in her apartment for more than seven hours until she tried to escape while he was in the bathroom. As she jumped from the second floor apartment and tried to flee (seriously injuring herself), petitioner fired five or six shots in her direction but did not hit her. According to petitioner's testimony, he had told her that he intended to commit suicide.

Petitioner was arrested, and in 1985, after a jury trial in Richmond County, he was convicted of attempted murder in the second degree, burglary in the first degree, unlawful imprisonment in the first degree, criminal possession of a weapon in the third degree and criminal use of a firearm in the first degree for which he was sentenced to 12 1/2 to 25 years ( People v. Wiesner, 129 A.D.2d 753, 514 N.Y.S.2d 514 [1987], lv. denied 70 N.Y.2d 658, 518 N.Y.S.2d 1053, 512 N.E.2d 579 [1987], lv. dismissed 71 N.Y.2d 1034, 530 N.Y.S.2d 570, 526 N.E.2d 62 [1988] ). In 1987, he pleaded guilty in the Southern District of New York to conspiracy to violate federal narcotics laws and to distribution and possession of Quaaludes. He was sentenced to time served, having been in federal custody since his December 1984 arrest.

However, in 1989, Judge Raymond Dearie, of the Federal Court for the Eastern District of New York, granted a habeas corpus petition on the ground that petitioner was denied his constitutional right to represent himself at the trial of the state charges ( Wiesner v. Abrams, 726 F.Supp. 912 [E.D.N.Y.1989], affd. 909 F.2d 1473 [2d Cir.1990] ). In March 1991, on the eve of retrial, petitioner entered an Alford–Serrano plea (for which he did not have to allocute to the facts of his guilt) to attempted murder in the second degree in exchange for a sentence of 2 to 6 years, nunc pro tunc from December 1984, to run concurrently with time served for his federal conviction. As a result of the two convictions, petitioner was incarcerated from December 1984 to January 1990.

After his release from prison, in a remarkably short period of time, petitioner obtained a college degree and a law degree from CUNY School of Law, and passed the bar in 1994. These academic achievements reflect well on petitioner's intelligence and competence, and demonstrate his capacity to reassert control over his future. However, these achievements, while commendable, do not resolve the issue we must determine, which is whether petitioner has been sufficiently rehabilitated to satisfy the character and fitness requirement set forth in Judiciary Law § 90 for admission to the bar.

Petitioner's first application to practice law was submitted to this Court's Committee on Character and Fitness in January 1995. The application was not approved, and this Court subsequently denied nine successive motions by petitioner seeking to renew his application for admission. On August 19, 2009, this Court granted his tenth motion to the extent of referring his renewed application to the Committee for “investigation, hearing and recommendation.” An evidentiary hearing was conducted before a subcommittee of the Committee on Character and Fitness, which, on February 22, 2010, unanimously recommended his admission. On March 9, 2010, the full Committee met and, by a vote of 20 to 3, recommended petitioner's admission.

It is evident that the Committee accorded much significance to petitioner's ability over an extended period of time to pursue a productive and positive life and career. Our careful review of the record likewise persuades us that these accomplishments are substantial indications of his rehabilitation.

Petitioner's criminal conduct, committed almost 30 years ago, involved well-orchestrated dishonesty, culminating in his federal conviction, rampant drug use and an inexplicable and almost impulsive act of violence towards his former girlfriend, leading to his New York conviction. The operative question is whether the record demonstrates that petitioner has completely rehabilitated himself, with specific reference to those character traits, so that he may now be said to possess the requisite character and fitness to practice law. We consider it particularly relevant that petitioner has been admitted to the bar in a number of other jurisdictions, where he has been practicing law for several years without incident. With these factors in mind, we turn to the applicable standards and the testimony offered in support of petitioner's application.

Judiciary Law § 90 directs, in relevant part, that upon certification that a person has passed the bar examination, the Appellate Division, upon being satisfied that “such person possesses the character and general fitness requisite for an attorney and counselor-at-law ... shall admit him to practice as such attorney and counselor-at-law” (Judiciary Law § 90[1][a] ). “Character,” often termed moral character in case law and commentary, is not defined in the statute, and is usually portrayed in terms of the applicant's fulfillment of professional responsibilities. Notably, the statute does not contemplate open-ended moral findings of a personal nature. Thus, the statute reflects no intent to impose a continuing punishment on an applicant with a criminal past. Although the seriousness of prior crimes remains an important, and perhaps sometimes dispositive, consideration, the Court's task is to evaluate the prospective risk that the applicant will abuse the trust and responsibilities bestowed upon him by virtue of his professional status. Therefore, our analysis proceeds on an evaluation of the record to determine whether the applicant possesses behavioral traits that may constitute a threat to individual clients or society in general and undermine the integrity of the legal system.

Since Judiciary Law § 90 does not provide a set of standards to evaluate bar applicants with a criminal record, we may be guided by the standards promulgated by the American Bar Association, which involve a number of related inquiries: the applicant's age when the crime was committed, whether the crime was recent, whether the information about the crime is reliable, the seriousness of the conduct, underlying factors, the cumulative consequences of the crime, evidence of the applicant's rehabilitation, whether the applicant has since made a contribution to society, the applicant's honesty during the application process and, in that regard, whether the applicant omitted material information or made material misrepresentations (Comprehensive Guide to Bar Admissions Requirements, ABA Section of Legal Education and Admissions to the Bar and National Conference of Bar Examiners at vii-viii [19941995] ). With respect to these criteria, the record shows that petitioner was in his 20s when he committed his crimes, which, though very serious, are not recent, having occurred some three decades ago; the evidence in support of his convictions is beyond dispute; he seriously injured a woman whom he professed to love; and he sold significant quantities of controlled substances to prescription drug abusers. In assessing petitioner's present application, we have focused on the extent of his rehabilitation, his contributions to society and his candor before the Committee.

Case law and commentary weigh not only the seriousness of an applicant's criminal history, but also the risk that he may pose as a lawyer. Conversely stated, the inquiry is whether the record establishes that the applicant has been rehabilitated to the extent that the traits that led to his criminal conduct have been demonstrably excised from his character. However, evaluating an applicant's moral growth as a measure of his...

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