In re Cresci

• Decision Date: 12 September 2019
• Docket Number: PM–133–19
• Citation: 175 A.D.3d 1670,107 N.Y.S.3d 188
• Parties: In the MATTER OF Peter Jonathan CRESCI, an Attorney.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1670

107 N.Y.S.3d 188

In the MATTER OF Peter Jonathan CRESCI, an Attorney.

PM–133–19

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 9, 2019

Decided and Entered: September 12, 2019

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Michael K. Creaser of counsel), for Attorney Grievance Committee for the Third Judicial Department.

Peter Jonathan Cresci, Bayonne, New Jersey, respondent pro se.

Before: Lynch, J.P., Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 2011 after previously being admitted in his home jurisdiction of New Jersey in 1992. Following respondent's interim suspension in New Jersey in 2016 for failure to cooperate with disciplinary authorities (see Matter of Cresci, 227 N.J. 139, 149 A.3d 3 [2016] ),¹ the Supreme Court of New Jersey censured respondent by December 2018 order based upon his failure to comply with the order of suspension. Subsequently, in March 2019, respondent was disbarred by the Supreme Court of New Jersey due to, among other things, his violation of 12 provisions of the New Jersey Rules of Professional Conduct, which included findings that he engaged in the unauthorized practice of law and knowingly misappropriated client funds (see Matter of Cresci, 237 N.J. 210, 204 A.3d 228 [2019] ).² Significantly, respondent failed to notify this Court and the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) within 30 days following the imposition of any of the above-referenced sanctions as required by Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(d).

AGC now moves to impose discipline upon respondent in this state pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13 and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.13 based upon the discipline imposed in New Jersey.³ Respondent opposes the motion, claiming that he was deprived of due process in the New Jersey disciplinary proceedings and that there was an infirmity of proof establishing his misconduct in that state (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][1], [2] ), to which defenses AGC has submitted a reply with leave of the Court (see Rules of App.Div., 3d Dept [ 22 NYCRR] § 806.13 [c] ). We have also heard the parties at oral argument and considered their supplemental submissions.

Upon consideration of the facts, circumstances and documentation before us, we conclude that respondent has not established any of the available defenses to the imposition of discipline in this state. Notably, respondent's failure to meaningfully participate in the New Jersey disciplinary process in that state compels us to consider the detailed findings set forth in the lengthy New Jersey Disciplinary Review Board decision relied upon by the Supreme Court of New Jersey. Contrary to respondent's arguments, our review of the record fails to support his claim of a lack of due process, or that there was an infirmity of proof in the New Jersey proceedings (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][1], [2] ).

Accordingly, finding that respondent's misconduct has been established, we turn our attention to the issue of the appropriate disciplinary sanction (see Matter of Colby, 156 A.D.3d 1215, 1216, 67 N.Y.S.3d 359 [2017] ; Matter of Aquia, 153 A.D.3d 1082, 1083, 57 N.Y.S.3d 447 [2017] ; see also Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.8 [b][2] ). In that regard, not only is respondent's pattern of misconduct decisively demonstrated in the file, the record further demonstrates respondent's persistent refusal to acknowledge the impropriety of his conduct and insistence that all investigations of his misconduct were prompted by corrupt motives (see Matter of McArdle, 167 A.D.3d 1223, 1224, 87 N.Y.S.3d 910 [2018] ; see generally ABA Standards for Imposing Lawyer Discipline § 9.22). Notably, this Court has previously expressed its view that the misappropriation of client funds is one of the most serious violations of an attorney's ethical duties (see Matter of Malyszek, 171 A.D.3d 1445, 1446, 97 N.Y.S.3d 543 [2019] ; Matter of Plimpton, 120 A.D.3d 1486, 1487, 991 N.Y.S.2d 924 [2014] ). Accordingly, given respondent's serious professional misconduct and his failure to provide proper notice of any of the disciplinary orders in New Jersey to this Court as required by Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(d), we find that the totality of facts and circumstances in this matter does not warrant a deviation from the severity of respondent's New Jersey disciplinary sanction. We therefore conclude that, to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent should be disbarred in this state (see Matter of Malyszek, 171 A.D.3d at 1446, 97 N.Y.S.3d 543 ; Matter of Patel, 166 A.D.3d 1463, 1464, 86 N.Y.S.3d 924 [2018] ; Matter of Graham, 164 A.D.3d 1520, 1521, 82 N.Y.S.3d 269 [2018] ).

Lynch, J.P., Clark, Devine and Pritzker, JJ., concur.

ORDERED that the motion by respondent for a stay of the motion by the Attorney Grievance Committee for the Third Judicial Department is denied; and it is further

ORDERED that...