Matter of Sheehan , 41 N.Y.S.3d 803 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 1, 2016 D-68-16
___________________________________
In the Matter of DOUGLAS D.
SHEEHAN, a Suspended Attorney. MEMORANDUM AND ORDER
ON MOTION
(Attorney Registration No. 3039476)
___________________________________
Calendar Date: October 17, 2016
Before: McCarthy, J.P., Garry, Egan Jr., Rose and Devine, JJ.
__________
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.
__________
Per Curiam.
Respondent, a resident of Connecticut, was admitted to
practice in that jurisdiction in 1999. He was admitted to the
practice of law by this Court in 2000.
Following respondent's indefinite interim suspension from
the practice of law by order of the Superior Court of Connecticut
in November 2009, this Court, by order entered April 8, 2010,
similarly placed respondent on interim suspension until further
order of the Court (72 AD3d 1270 [2010]). Respondent has not
applied for reinstatement and said suspension remains in effect.
This Court has now been advised that respondent was convicted in
November 2010 of conspiracy to commit wire fraud (see 18 USC §
1349) and wire fraud (see 18 USC § 1343) in the United States
District Court for the District of Connecticut. Further, in
2011, respondent pleaded guilty in Connecticut to operation of a
motor vehicle while under the influence of alcohol (hereinafter
DWI), which, due to respondent's previous 2006 DWI conviction, is
deemed a felony in Connecticut (see Connecticut General Statutes
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§ 14-227a; see also McCoy v Commissioner of Public Safety, 300
Conn 144 [2011]). In November 2013, respondent agreed to an
order extending his suspension from the practice of law in
Connecticut. To date, said suspension remains in place.
The Attorney Grievance Committee for the Third Judicial
Department (hereinafter AGC) now moves pursuant to Judiciary Law
§ 90 (4) (a) and (b) for an order striking respondent's name from
the roll of attorneys on the basis that he has been automatically
disbarred due to his felony convictions. Alternatively, AGC
moves pursuant to Uniform Rules for Attorney Disciplinary Matters
(22 NYCRR) § 1240.13 to impose discipline upon respondent in this
state based upon his suspension in Connecticut.1 Respondent has
not replied or otherwise responded to AGC's motion.
As relevant herein, "[a]n attorney convicted of a felony
in [a foreign jurisdiction that is] essentially similar to a New
York felony is automatically disbarred" (Matter of Park, 95 AD3d
1648, 1648 [2012]; see Judiciary Law § 90 [4] [a], [e]). While
we do not find that respondent's federal felony convictions of
wire fraud and conspiracy to commit wire fraud meet this standard
under the circumstances herein (see Matter of Mueller, 129 AD3d
1293, 1294 [2015]), we are persuaded that respondent's 2011
felony DWI conviction in Connecticut is essentially similar to
the New York felony of DWI in violation of Vehicle and Traffic
Law § 1192 (2) and (3) and § 1193 (1) (c). Similar to those New
York statutes, the elements of Connecticut General Statutes § 14-
227a include the requirements of operating a motor vehicle while
1
AGC also notes that respondent failed to notify this
Court of any of his convictions as required by Judiciary Law § 90
(4) (c); nor did he file a copy of the 2013 Connecticut
disciplinary order with this Court within 30 days as required by
Rules of the Appellate Division, Third Department (22 NYCRR)
former § 806.19 (b) (see Uniform Rules for Attorney Disciplinary
Matters [22 NYCRR] § 1240.13 [d]). Additionally, respondent is
currently delinquent in this state with respect to his biennial
attorney registration obligation (see Judiciary Law § 468-a [5];
Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [d];
Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [h]).
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under the influence of alcohol with a blood alcohol content of
.08% or more by weight of alcohol. Moreover, Connecticut and New
York law both elevate such a conviction to a felony where there
has been a previous DWI conviction within the past 10 years
(compare Vehicle and Traffic Law § 1193 [1] [c], with Connecticut
General Statutes § 14-227a [g] [2] and McCoy v Commissioner of
Public Safety, 300 Conn at 145). Consequently, it is our view
that respondent's Connecticut DWI conviction is a proper
predicate for automatic disbarment pursuant to Judiciary Law § 90
(4) (b) as an analogue felony. Thus, our sole ministerial
obligation herein is to publicly confirm respondent's disbarred
status by now striking his name from the roll of attorneys nunc
pro tunc to the date of his guilty plea, July 1, 2011 (see Matter
of Dawson, 133 AD3d 1083, 1084 [2015]; Matter of Sanderson, 119
AD3d 1318, 1318 [2014]).
Finally, given this result, it is unnecessary to address
AGC's alternative request for the imposition of discipline based
upon respondent's 2013 suspension in Connecticut.
McCarthy, J.P., Garry, Egan Jr., Rose and Devine, JJ.,
concur.
ORDERED that the motion of the Attorney Grievance Committee
for the Third Judicial Department is granted in part and denied
in part in accordance with the findings set forth in this
decision; and it is further
ORDERED that respondent's name is hereby stricken from the
roll of attorneys and counselors-at-law of the State of New York,
effective nunc pro tunc to July 1, 2011; and it is further
ORDERED that respondent is commanded to desist and refrain
from the practice of law in any form, either as principal or as
agent, clerk or employee of another; and respondent is hereby
forbidden to appear as an attorney or counselor-at-law before any
court, judge, justice, board, commission or other public
authority, or to give to another an opinion as to the law or its
application, or any advice in relation thereto; and it is further
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ORDERED that respondent shall comply with the provisions of
the Uniform Rules for Attorney Disciplinary Matters regulating
the conduct of disbarred attorneys (see Uniform Rules for
Attorney Disciplinary Matters [22 NYCRR] § 1240.15).
ENTER:
Robert D. Mayberger
Clerk of the Court