Matter of Alessandro

Matter of Alessandro 2012 NY Slip Op 06944 Decided on October 17, 2012 Appellate Division, Second Department 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.

Decided on October 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
PETER B. SKELOS
RUTH C. BALKIN, JJ.
2010-03701

[*1]In the Matter of Joseph S. Alessandro, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Joseph S. Alessandro, respondent. (Attorney Registration No. 1548999)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Ninth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on October 28, 1971. By opinion and order dated October 20, 2009, the Court of Appeals, inter alia, confirmed a determination of the State Commission on Judicial Conduct dated February 11, 2009, sustaining four charges of judicial misconduct asserted against the respondent, and removing him from the public office of Justice of the Supreme Court for the Ninth Judicial District (Matter of Alessandro [State Commn. on Jud. Conduct], 13 NY3d 238). By decision and order on motion of this Court dated November 5, 2010, the Grievance Committee for the Ninth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent, based upon the acts of professional misconduct set forth in a verified petition dated April 16, 2010, which were premised upon the same facts as those before the State Commission on Judicial Conduct, the facts underlying the allegations of judicial misconduct were deemed established, based upon the doctrine of collateral estoppel, the respondent was precluded from relitigating those facts, and the matter was referred to the Honorable Arthur J. Cooperman, as Special Referee to hear and report, in effect, on the issues of mitigation and whether the respondent committed professional misconduct. Gary L. Casella, White Plains, N.Y. (Glenn E. Simpson of counsel), for petitioner.


DerOhannesian & DerOhannesian, Albany, N.Y. (Paul
DerOhannesian of counsel), for respondent.
The Grievance Committee for the Ninth Judicial District
(hereinafter the Grievance Committee) served the respondent with a
verified petition dated April 16, 2010, containing three charges of
professional misconduct. By decision and order on motion of this Court
dated November 5, 2010, the facts underlying the allegations of
judicial misconduct asserted against the respondent in a separate
proceeding (see Matter of Alessandro [State Commn. on Jud.
Conduct], 13 NY3d 238) were deemed established, based upon the
doctrine of collateral estoppel, and the respondent was precluded from
relitigating those facts. After a hearing, the Special Referee
sustained all three charges of professional misconduct and addressed and
summarized the issues claimed by the [*2]respondent to support his
request for mitigation. The Grievance Committee now moves to
confirm the Special Referee's report and to impose such discipline
upon the respondent as the Court may deem just and proper. The
respondent opposes the Grievance Committee's motion.
Charge one alleges that the respondent, Joseph S. Alessandro, a
former justice of the Supreme Court, was removed from the bench,
based upon factual findings by the New York State Commission
on Judicial Conduct (hereinafter the Commission), which were
sustained by the Court of Appeals, that he engaged in judicial
misconduct involving deceit, deception, and dishonesty, which acts
constitute "conduct involving dishonesty, fraud, deceit, or
misrepresentation" in violation of Code of Professional Responsibility DR
1-102(a)(4) (22 NYCRR 1200.3[a][4]).
In a determination dated February 11, 2009, the Commission
found that the respondent, in his capacity as a Judge of the County
Court and/or Justice of the Supreme Court, "engaged in a course
of deliberately deceptive and injudicious behavior. After accepting
a $250,000 loan from his campaign manager, he contrived to delay
repayment and [to] conceal his liability in a series of deceitful acts.
He gave misleading and evasive testimony concerning the matter
during the Commission investigation. He intentionally withheld
information about the loan on his mandatory financial disclosure
statement and multiple loan applications."
In an opinion and order dated October 20, 2009, the Court of
Appeals sustained the factual findings of the Commission, and
accepted its sanction of removal from the bench. The Court of
Appeals determined, inter alia, that the respondent engaged in
intentionally deceitful and dishonest conduct, explaining, inter alia, that
"[b]ased upon our independent review of the record, we conclude
that Joseph Alessandro engaged in misconduct warranting removal
from office. We have repeatedly emphasized that deception is
antithetical to the role of a Judge who is sworn to uphold the law
and seek the truth'" (Matter of Alessandro [State Commn. on Jud.
Conduct], 13 NY3d at 248, quoting Matter of Myers, 67 NY2d
550, 554).
The respondent was a party to the proceedings before the
Commission and the Court of Appeals, and had a full and fair opportunity
to litigate the issues of his misconduct.
Charge two alleges that the respondent was removed from the
bench, based upon factual findings by the Commission, which were
sustained by the Court of Appeals, that he engaged in judicial
misconduct involving deceit, deception, and dishonesty, which acts
constitute "conduct that adversely reflects on [his] fitness as a lawyer" in
violation of Code of Professional Responsibility DR 1-102(a)(7)
(22 NYCRR 1200.3[a][7]), based upon the factual allegations of
charge one.
Charge three alleges that the respondent was removed from the
bench, based upon factual findings by the Commission, which were
sustained by the Court of Appeals, that he engaged in judicial
misconduct involving deceit, deception, and dishonesty with regard to his
failure to make full and accurate financial disclosure as required by
22 NYCRR part 40, which acts constitute "conduct that is
prejudicial to the administration of justice" in violation of Code of
Professional Responsibility DR 1-102(a)(5) (22 NYCRR 1200.3[a][5]).
Pursuant to 22 NYCRR 40.2, the respondent was obligated to file
annual financial disclosure. Pursuant to 22 NYCRR 40.1(1), an
individual required to file financial disclosure is required to file
accurate, truthful disclosure; one "who knowingly and willfully
with intent to deceive makes a false statement or gives information
which such individual knows to be false . . . shall be subject to
disciplinary action."
The Commission and the Court of Appeals both concluded, inter
alia, that the respondent engaged in a prolonged course of
deliberately deceptive behavior in that he intentionally withheld
information about the loan from his campaign manager on his mandatory
financial disclosure statement.
Based upon the facts that were deemed established based upon
the doctrine of collateral estoppel, the Special Referee properly
sustained charges one through three. Accordingly, the Grievance
Committee's motion to confirm the Special Referee's report is
granted.
In determining an appropriate measure of discipline to impose,
we note the respondent's arguments that he "cooperated, assisted
and appeared in all proceedings . . . including the present action,
without any hesitation or reservation"; that, since his removal from
the bench, he has not practiced law in the Second Judicial
Department but, rather, has been providing pro bono services to senior
citizens in the Bronx; that, prior to his removal from the bench, his
character and reputation as a lawyer and judge were unblemished;
that "[his] inexperience as a political candidate in 2003 may have
contributed to his decision to accept a problematic loan from his
campaign [*3]manager"; that he faced several " unfortunate events'"
in his life during the subject period such that a "black and white"
description of those events—and the underlying conduct—fails to
paint the "full color picture" necessary to understanding the
"context" of the charges; that a monetary claim against him was settled
and, therefore, there was "no monetary loss involved"; that he
accepts the findings made against him, is sorry for the hurt he caused, and
realizes that his actions "reflect adversely on everyone with whom
he was associated or dealt"; and that he has already been punished
for his conduct through his removal as a judge and the "attendant
publicity and public humiliation." Moreover, we have considered
the numerous letters submitted on the respondent's behalf.
However, the Commission, in its determination, concluded that the
respondent engaged in "truly egregious behavior" that "[in] its totality .
. . constitutes a departure from the high standards of conduct
required." The Court of Appeals concluded, similarly, that the respondent
failed to meet the "highest level of . . . honesty and integrity." It is
notable that the Commission rejected the same claims of mitigation
offered herein. Just as " deception is antithetical to the role of a
Judge who is sworn to uphold the law and seek the truth'" (Matter
of Alessandro [State Commn. on Jud. Conduct], 13 NY3d at 248,
quoting Matter of Myers, 67 NY2d at 554) so, too, is it
incompatible with the position of trust and confidence occupied by an
attorney at law. "[L]awyers must be held to the highest standards
of ethical conduct' because the legal profession needs the respect
and confidence of society if it is to play its critical role in sustaining
the rule of law and the concept of justice upon which our free and
democratic society depends" (Matter of Bikman, 304 AD2d 162,
165, quoting Matter of Rowe, 80 NY2d 336, 340, cert denied sub
nom. Rowe v Joint Bar Assn. Grievance Comm. for Second &
Eleventh Jud. Dists., 508 US 928).
Under the totality of the circumstances, the respondent is
disbarred and, effective immediately, his name is stricken from the roll
of attorneys and counselors-at-law.

OPINION & ORDER


ENG, P.J., MASTRO, RIVERA, SKELOS and BALKIN, JJ., concur.

ORDERED that the petitioner's motion to confirm the Special Referee's report is granted; and it is further,

ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Joseph S. Alessandro, is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

ORDERED that the respondent, Joseph S. Alessandro, shall comply with this Court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, the respondent, Joseph S. Alessandro, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Joseph S. Alessandro, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court [*4]