Matter of Hennessey , 29 N.Y.S.3d 645 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 D-20-16
___________________________________
In the Matter of JAMES J.
HENNESSEY JR., a Disbarred
Attorney.
COMMITTEE ON PROFESSIONAL
STANDARDS, DECISION AND ORDER
ON MOTION
Petitioner;
JAMES J. HENNESSEY JR.,
Respondent.
(Attorney Registration No. 1899400)
___________________________________
Calendar Date: March 21, 2016
Before: McCarthy, J.P., Garry, Egan Jr. and Clark, JJ.
__________
Monica A. Duffy, Committee on Professional Standards,
Albany (Michael K. Creaser of counsel), for petitioner.
Gary Greenwald & Partners, P.C., Chester (Gary Greenwald of
counsel), for respondent.
__________
Per Curiam.
In 2012, respondent was convicted, upon his plea of guilty,
of two felony counts of aggravated harassment in the second
degree as a hate crime (see generally People v Hennessey, 111
AD3d 1166 [2013]). Upon said conviction, respondent was
automatically disbarred from the practice of law (see Judiciary
Law § 90 [4] [a], [e]; Matter of Barash, 20 NY2d 154, 157
[1967]). This Court's subsequent acceptance of respondent's
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resignation from practice (95 AD3d 1501 [2012]) was therefore
superfluous (see Matter of Sanderson, 119 AD3d 1318, 1318
[2014]), but the order nonetheless accomplished the formality of
striking respondent's name from the roll of attorneys (see
Judiciary Law § 90 [4] [b]).
In December 2014, respondent's criminal convictions were
vacated by Albany County Court (Herrick, J.) on the sole basis
that the underlying crimes were held to be unconstitutional by
the Court of Appeals in an unrelated case (see People v Golb, 23
NY3d 455, 466-468 [2014]). Respondent thereafter moved for
reinstatement to the practice of law. Petitioner opposed the
application on the basis that the criminal proceedings and
disbarment had forestalled any earlier investigation and that
such was necessary given that respondent's guilty plea had not
been vacated, nor was he acquitted of the factual allegations
underlying the criminal proceedings. By June 29, 2015
confidential order, this Court thereafter directed petitioner "to
expeditiously commence an investigation pursuant to Rules of the
Appellate Division (22 NYCRR) § 806.4 and determine whether a
proceeding pursuant to Rules of the Appellate Division, Third
Department (22 NYCRR) §§ 806.5 and/or 806.10 is warranted" (see
generally Matter of Barash, 20 NY2d at 158-159). This Court
further directed that respondent's application for reinstatement
be held in abeyance pending the resolution of any proceeding
commenced by petitioner concerning respondent.
Subsequently, petitioner undertook its investigation,
conducted an examination of respondent at its offices and
authorized, among other things, commencement of a proceeding
pursuant to Rules of the Appellate Division, Third Department (22
NYCRR) § 806.5. Petitioner thereafter filed a petition of
charges, dated January 19, 2016, alleging that respondent engaged
in conduct adversely reflecting on his fitness as a lawyer,
deceptive conduct and conduct prejudicial to the administration
of justice. In lieu of filing an answer, respondent now moves to
dismiss the petition of charges on the basis of insufficiency and
for reinstatement. Petitioner opposes this motion and cross-
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moves to unseal respondent's criminal record.1
Respondent's motion to dismiss is founded primarily on his
claim that the petition of charges is impermissibly based upon
information and statements obtained from respondent's "now sealed
criminal case." However, as this Court indicated in its June
2015 order directing commencement of the subject investigation,
CPL 160.50 (1) (c) permits review of the record on appeal
previously submitted to this Court in conjunction with People v
Hennessey (supra). Accordingly, we find no basis to grant
respondent's pre-answer motion to dismiss the petition of
charges. Moreover, given the availability of respondent's
appellate record for petitioner's inspection, "an order unsealing
the records is unnecessary" (Matter of Keeffe, 76 AD2d 416, 418
[1980]). Consequently, we further deny, as unnecessary,
petitioner's cross motion to order the formal unsealing of the
records sealed by County Court pursuant to CPL 160.50.
McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur.
ORDERED that respondent's motion is denied; and it is
further
ORDERED that petitioner's cross motion is denied, as
unnecessary.
ORDERED that respondent is permitted to serve an answer to
the January 19, 2016 petition of charges within 20 days of the
date of this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
Prior to oral argument on the cross motions, respondent
submitted a written waiver of confidentiality.