Opinion
Argued November 23, 1965
Decided December 30, 1965
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Philip Handelman and Eric L. Keisman for appellant.
Solomon A. Klein and Roy M.D. Richardson, pro se, for Roy M.D. Richardson, respondent.
MEMORANDUM. The order appealed from should be modified by eliminating therefrom such parts thereof as strike out paragraphs 2, 3, 4, 5, 6, 7 and 9 of the answer. The question certified must be answered in the negative. The Federal court judgment convicting appellant herein of this misdemeanor is prima facie proof of the crime charged ( Matter of Donegan, 282 N.Y. 285, 293; also, 294 N.Y. 704, affg. 265 App. Div. 774) and of his unfitness to practice law. However, fairness and justice suggest that there be a wide range of inquiry as to facts which have a bearing on the ultimate issue of appellant's fitness to continue as a member of the Bar. The appellant will be privileged to relitigate the issue of his guilt by introducing, if he can, evidence which was unavailable to him upon the trial in the Federal court, including proof of recantations or perjury by witnesses who had testified against him. Since it is impossible to predict in advance just how far the inquiry should go, the ends of justice will better be served by allowing the learned and experienced judicial officer, to whom this proceeding has been referred, to hear any offered proof which is reasonably relevant to the ultimate issues. It is for the Hearing Officer, subject to review by the Appellate Division, to consider and pass upon the materiality and bearing of such proof ( Matter of Donegan, supra).
Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN concur.
Order modified in accordance with the MEMORANDUM herein and, as so modified, affirmed, without costs. Question certified answered in the negative.