Appellate Division: Second Judicial Department

M172071

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

JEFFREY A. COHEN, JJ.

2013-10852 In the Matter of Paul D. Kraft, admitted as Paul David Kraft, an attorney and counselo Grievance Committee for the Second, Elev and Thirteenth Judicial Districts, petitione Paul D. Kraft, respondent. (Attorney Registration No. 4727210)

DECISION & ORDER ON MOTION r-at-law. enth, r;

The respondent was admitted at a term of the Appellate Division of the Supreme Court in the Second Judicial Department, on September 16, 2009, under the name Paul David Kraft. In an affirmation dated November 26, 2013, on notice to the respondent, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts advised the Court that the respondent was convicted of five counts of forcible touching, a class A misdemeanor, in violation of Penal Law § 130.52, in the Criminal Court of the City of New York, New York County, upon his plea of guilty, and was sentenced on May 1, 2013, to three years probation, and directed to complete an 18-month sexual behavior program.

The Grievance Committee asserts that the respondent's conviction constitutes a "serious crime," warranting his suspension from the practice of law pursuant to Judiciary Law � 90(4)(d) and 22 NYCRR 691.7[b]), because a "serious crime" includes any crime involving "moral turpitude" (see 22 NYCRR 691.7[b]), and forcible touching, which involves "forcibly touch[ing] the sexual or other intimate parts of another person," involves "moral turpitude." In response, by affirmation dated January 2, 2014, the respondent asserts that his suspension is unwarranted pursuant to Judiciary Law § 90(4)(d), because that statute does not define a "serious crime" to be a crime involving "moral turpitude," and the crime of forcible touching does not otherwise fall within the definition of a "serious crime" under that statute. Additionally, the respondent asserts that his suspension is unwarranted pursuant to 22 NYCRR § 691.7, notwithstanding its definition of a "serious crime" as, inter alia, a crime involving "moral turpitude," because 22 NYCRR § 691.7 does not contain a provision authorizing the suspension of an attorney convicted of a "serious crime." Moreover, the respondent asserts that his conduct resulted from "behavioral issues," for which he is receiving treatment, and not from "moral turpitude."

Contrary to the respondent's assertions, Judiciary Law § 90(4)(d), together with 22 NYCRR 691.7(b), authorizes this Court to immediately suspend an attorney convicted of a "serious crime" involving "moral turpitude" (see Matter of O'Hare, 2011 NY Slip Op 93856[U][2d Dept 2011]; Matter of Wasserman, __ NY Slip Op __ [U][2d Dept 1994; 1994-08442]). Under the circumstances of this case, we find that the respondent's convictions warrant his immediate suspension, and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding in this Court, as petitioner, against the respondent, Paul D. Kraft, admitted as Paul David Kraft, based on his conviction of a "serious crime."

Upon the papers submitted to the Court by the Grievance Committee, and the papers submitted in response thereto, it is

ORDERED that on the Court's own motion, the respondent, Paul D. Kraft, admitted as Paul David Kraft, is immediately suspended from the practice of law pursuant to Judiciary Law § 90(4)(f) and 22 NYCRR 691.7(b) as a result of his conviction of a serious crime, continuing until further order of this Court; and it is further,

ORDERED that the respondent, Paul D. Kraft, admitted as Paul David Kraft, shall promptly 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, during the period of suspension and until further order of this Court, the respondent, Paul D. Kraft, admitted as Paul David Kraft, 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 on the Court's own motion, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, as petitioner, against the respondent, Paul D. Kraft, admitted as Paul David Kraft, based on his conviction of a serious crime; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Kenneth Davis, 19 Harriet Drive, Syosset, N.Y. 11791, as Special Referee, to hear and report, and to submit a report, which contains his findings on the issues, within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that the petitioner Grievance Committee shall serve upon the respondent, Paul D. Kraft, admitted as Paul David Kraft, and the Special Referee, and file with this Court, a petition within 30 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that the respondent, Paul D. Kraft, admitted as Paul David Kraft, shall serve an answer upon the petitioner, and the Special Referee, and file the original answer with this Court, within 20 days after service upon him of the petition.

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

ENTER:

Aprilanne Agostino

Clerk of the Court