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In re Silberman (N.Y.App.Div. 03/10/2009)

March 10, 2009

IN THE MATTER OF JOEL A. SILBERMAN (ADMITTED AS JOEL ALAN SILBERMAN), A DISBARRED ATTORNEY: PETITIONER,
FOR REINSTATEMENT TO THE BAR OF THE STATE OF NEW YORK, DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, RESPONDENT.



Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Joel A. Silberman, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on September 24, 1986.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Peter Tom, Justice Presiding, Angela M. Mazzarelli, Richard T. Andrias, James M. McGuire, Rolando T. Acosta, Justices.

M1947 & M3040

M—1947, M-3040

Respondent was admitted to the practice of law in the State of New York by the Second Judicial Department on September 24, 1986, and at all times relevant to these proceedings he maintained his principal place of business within this Judicial Department.

On November 9, 2004, respondent pleaded guilty to criminal sale of a controlled substance in the third degree in violation of Penal Law § 220.39(1), a class B felony, and agreed to participate in the ASPIRE (Alternative Sentencing Pre-Indictment Rehabilitation Effort) program with the understanding that if he successfully completed the program and had not been rearrested, he would be allowed to withdraw his felony plea, plead guilty to a class A misdemeanor, and a sentence of time served would be imposed.

By order entered May 11, 2006, this Court struck respondent's name from the roll of attorneys based on automatic disbarrment as a result of his conviction of a felony as defined by Judiciary Law § 90(4)(e)(Matter of Silberman, 31 AD3d 21 [2006]). We specifically rejected respondent's request to defer a final sanction until he completed the drug treatment program, stating in pertinent part, that the Judiciary Law "is self-executing" and,"[s]hould respondent re-plead to a misdemeanor, he may petition this Court to vacate the order of disbarrment" (31 AD3d at 22-23).

Respondent successfully completed the ASPIRE program in 2006, including completion of Daytop Village's six month residential drug treatment program; intensive outpatient treatment for one year; completion of community service; the securing of full time employment; living in housing approved by the Office of Special Narcotics; and weekly drug testing, and received excellent evaluations from the staff and program managers. Respondent avers that he has not used drugs since his March 2004 arrest.

On November 2, 2006, respondent pleaded guilty to criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03, a misdemeanor, and received a sentence of time served. Thereafter, On November 6, 2006, in accordance with his plea agreement, New York County Supreme Court vacated respondent's felony conviction and dismissed all pending criminal charges against him.

Now that his felony conviction has been dismissed and replaced by a misdemeanor conviction, respondent moves pursuant to Judiciary Law § 90(5)(a) for an order: 1) vacating this Court's previous disbarrment order entered May 11, 2006; 2) reinstating him to the practice of law without further proceedings; and 3) deeming his removal from the bar as a suspension nunc pro tunc to November 9, 2004 (date of conviction), since he has now effectively been out of the practice of law for almost four years for a misdemeanor conviction (see Matter of Hecht, 253 AD2d 98 [1999][by the time final sanction of a one year suspension was determined in this non-criminal case, attorney already suspended for two years, thus, Court imposed suspension nunc pro tunc to interim suspension and reinstated attorney without further proceedings]; see also Matter of Levin, 261 AD2d 74 [1999][three year suspension imposed nunc pro tunc to interim suspension and immediately reinstated]). Respondent, who has also been in the restaurant business since his graduation from law school in 1985, states that, since the reduction of his conviction to a misdemeanor, he has been actively involved in opening a new gourmet sandwich shop and he has not practiced law since his November 2004 guilty plea.

Although it concedes that respondent's disbarrment order should be vacated pursuant to Judiciary Law § 90(5), the Departmental Disciplinary Committee cross moves for an order: 1) immediately suspending respondent from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(i) and (iii) based upon substantial admissions made under oath (referring to his plea allocution) and other uncontested evidence of professional misconduct in violation of DR 1-102(A)(3)(illegal conduct that adversely reflect on respondent's honesty, trustworthiness or fitness as a lawyer) and 1-102(A)(7)(conduct that adversely reflects on respondent's fitness as a lawyer); and 2) referring the matter to the Committee for the commencement of a disciplinary proceeding based upon a formal statement of charges, which will allow the issues surrounding his misconduct to be more fully addressed.

In opposition to respondent's motion and in support of its cross motion the Committee argues, inter alia, that respondent may still be disbarred for his conduct regardless of the fact that he was convicted of the misdemeanor of criminal possession of a controlled substance in the seventh degree. It contends that, at a deposition in May 2007 (taken in anticipation of respondent's current motion), respondent "recanted" his plea admission that he sold drugs and, therefore, testified inconsistently to his ...


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