In Matter of Weissmann, 2019 NY Slip Op 06170 (2d Dep’t 2019), the Special Prosecutor for the Village of Spring Valley Justice Court received a two-year suspension from the practice of law for helping select defendants favorably dispose of parking tickets at the direction of a Village Trustee. This cautionary case serves as a poignant reminder for private practitioners who cross the threshold into public service in their local municipalities.

Mr. Weissmann was appointed as Special Prosecutor for the Village’s Justice Court to prosecute traffic tickets and zoning violations. While serving in this capacity, and at the behest of a Village Trustee, counsel submitted false documentation to the Village Justice to justify favorable plea dispositions. The Trustee attended plea negotiations sessions, met with the defendants and, on occasion, directed the Special Prosecutor as to how to dispose of the charges.

Specifically, in November 2016, a defendant, charged twice with illegally parking in a handicapped parking spot, met with the Trustee. The Trustee instructed the Special Prosecutor to “remember [the defendant].” Later, during plea negotiations, the Special Prosecutor advised the defendant to pretend she possessed a handicapped placard, and that the placard had fallen inside of her vehicle – despite counsel knowing full-well that the defendant had no such placard. In support of the Special Prosecutor’s application to dismiss the parking tickets,  counsel filed a traffic infraction plea agreement with the Justice Court, wherein he falsely stated the defendant had a disability placard that had  fallen to the floor of her car.

A misdemeanor complaint was filed against the Special Prosecutor charging him with “unauthorized exercise of [his] official functions.” In June 2018, the Special Prosecutor pleaded guilty to “official misconduct” in violation of N.Y. Penal Law Section 195.00(1). In September 2018, the Village Justice Court sentenced counsel to two years’ probation, among other things. The Ninth Judicial District Grievance Committee moved to suspend counsel from the practice of law based upon its determination that the attorney had been convicted of a “serious crime” pursuant to N.Y. Judiciary Law Section 90(4)(d); the Special Prosecutor cross-moved, arguing his conviction did not constitute a serious crime, and seeking to vacate the suspension in exchange for a lesser punishment. The Appellate Division, Second Department, recently granted the Committee’s motion.

Section 90(4)(d) of the Judiciary Law defines “serious crime” as “any criminal offense denominated a felony under the laws of any state, district or territory or of the United States which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime.”

Section 195.00(1) of the Penal Law defines “official misconduct” as follows: “[a] public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized.” Official misconduct is a class A misdemeanor.

The Second Department held that the Special Prosecutor’s official misconduct is a serious crime: “a public servant who commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized, necessarily engages in deceitful conduct. . . . [T]he element of deceit, one of the enumerated statutory elements, is present and, accordingly, ‘official misconduct’ is a ‘serious crime’ as defined by [the] Judiciary Law.”

With respect to the measure of discipline, the Special Prosecutor requested a censure or a six-month suspension, given certain mitigating factors, including his remorse, his acceptance of full responsibility, and his disciplinary record (which only contained one letter of caution). The Second Department rejected this request, stating that it “cannot overlook the fact that the crime committed here epitomizes the kind of corruption at the heart of the judicial system that undermines the public’s trust in the courts and their delivery of fair and evenhanded justice.” Counsel, serving as Special Prosecutor, fabricated evidence to secure dismissal – knowing this behavior was wrong and improper. Under the totality of the circumstances,  a two year suspension is warranted. Notably, although counsel is prohibited from practicing law, he must comply with all applicable continuing legal education requirements and surrender his secure pass, among other things.