Wallman v. TravisWallman v. Travis
Petitioner is a 64-year-old former attorney who began practicing law in New York in 1964. For most of that time, he practiced with a partner, Alan Wechsler, who ran the business of the firm and did estate and commercial work. Petitioner‘s primary business was trying medical malpractice cases. In the early 1990s, the firm suffered financial decline. Between June 1996 and June 1999, petitioner and Wechsler stole $4.7 million from their clients’ escrow accounts. At least $2.7 million was used to pay the firm‘s operating expenses and approximately $900,000 was used by petitioner for his own personal expenses.
On June 29, 2000, petitioner pleaded guilty to one count of grand larceny in the first degree and two counts of grand larceny in the second degree. On August 14, 2000, he was sentenced to three concurrent terms of 3 1/3 to 10 years. As a result of his felony convictions, petitioner was disbarred (see Matter of Wallman, 276 AD2d 40, 41 [2000]).
Ultimately, all but one of the firm‘s clients were reimbursed by the Lawyers’ Fund for Client Protection. In addition, petitioner provided confessions of judgment to both the Lawyers’ Fund and the one unpaid client, and simultaneously waived his interest in legal fees for any of his open cases.
In June 2003, having served his minimum period of imprisonment, petitioner became eligible for regular parole consideration (
In its June 17, 2003 decision, the Parole Board denied petitioner‘s request for parole release and ordered that he be held for an additional 24 months. The Board determined that “there is a reasonable probability that you would not live and remain at liberty without violating the law and your release at this time is incompatible with the welfare and safety of the community.”
The Board cited several factors for its decision, including that the crime involved “misappropriating $4.7 million in client funds,” that the conduct took place over a long period of time, that the thefts were from “injured people seeking legal redress and compensation for their injuries” and involved violations of the victims’ trust, and that petitioner had “limited insight into [his] ongoing crimes and victims of these crimes.” Petitioner‘s administrative appeal of the Board‘s determination was denied on December 19, 2003.
Petitioner commenced the instant
Supreme Court, in the judgment appealed from, denied and
Finally, the court held that petitioner‘s reliance on the Marino case was misplaced, since although that case also involved the theft of client funds by an older attorney, since disbarred, there were significant differences in the cases such as the relative age and health of the attorneys, the amount of funds misappropriated and the number of victims involved.
On appeal, petitioner argues that Supreme Court erred in failing to conclude that the Board‘s denial of parole was “irrational bordering on impropriety.” Specifically, he argues that the Board‘s conclusion that there was a reasonable probability that he would violate the law if released and that his release was incompatible with the welfare and safety of the community is refuted by the hearing record and was influenced by the Board‘s mischaracterization of the hearing testimony. He also contends that the alleged distinctions cited by the Board and court regarding the Marino case are factually incorrect. We agree.
The statutory scheme imposing the standard for discretionary release on parole is set out in detail in the Executive Law and the accompanying regulations of the Division of Parole (see
As the terms of section 805 make plain, the receipt of an earned eligibility certificate does not preclude the Board from denying parole, nor does it eliminate the Board‘s discretion in making the release decision (Matter of Barad v New York State Bd. of Parole, 275 AD2d 856 [2000], lv denied 96 NY2d 702 [2001]). However, some nisi prius courts have held, and we agree, that the statute creates a presumption in favor of parole release of any inmate who, like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less (Matter of Marino v Travis, Sup Ct, Queens County, 2003, Index No. 15788/02, affd 13 AD3d 453 [2004]; Matter of Weinstein v Dennison, 7 Misc 3d 1009[A], 2005 NY Slip Op 50518[U], *8 [Sup Ct, NY County 2005]).
Although the last sentence of section 805 states that any board action pursuant to this section “shall be deemed a judicial function and shall not be reviewable if done in accordance with law,” courts have interpreted this phrase, and a similar one in
Petitioner has succeeded in demonstrating the irrationality of the Board‘s determination in two significant respects. First, petitioner has made a convincing showing that the Board‘s “reasonable probability” determination was based almost exclusively on the nature and seriousness of the offense, with only a fleeting reference to the petitioner‘s alleged “limited insight into [his] ongoing crimes and victims of these crimes.” A Parole Board‘s exclusive reliance on the severity of the offense to deny parole not only contravenes the discretionary scheme mandated by statute, but also effectively constitutes an unauthorized resentencing of the defendant (see Matter of King v New York State Div. of Parole, 190 AD2d 423, 432 [1993], affd 83 NY2d 788 [1994] [to deny parole based exclusively on the severity of offense, there must be some significant aggravating or egregious circumstances surrounding the commission of the crime]; Cappiello v New York State Bd. of Parole, 6 Misc 3d 1010[A], 2005 NY Slip Op 51762[U] [2005] [Board‘s unjustifiable reliance solely on the severity of the crime exceeded its administrative discretion and was contrary to law]).
Moreover, the Board‘s perfunctory discussion of petitioner‘s alleged lack of insight is contrary to the Court of Appeals’ decision in Matter of Silmon v Travis (95 NY2d at 477), which held that a petitioner‘s remorse and insight into his crimes are highly relevant in evaluating an inmate‘s rehabilitative progress, especially where, as here, the prisoner has otherwise lived a law-abiding life and maintained a good prison record. Despite the critical significance of these factors in evaluating an inmate under the “reasonable probability” standard, the Board‘s decision in this case offers no supportive facts justifying its finding of lack of insight and remorse.
The Board‘s lack of supporting facts in its written decision might be excused if the parole hearing record otherwise supported its conclusion, but in this case it does not. The hearing transcript contains numerous statements by petitioner demonstrating his understanding of the harm caused by his misconduct and his remorse for it. For instance, when asked by a board member why he stole the money, he responded: “I have had much time to think about for the past three years why I did what I did, what motivated such egregious behavior. I know what I did . . . I s[tole] my clients’ funds and as a result of it I hurt my clients and I inflicted pain on my family and those that I loved. I believe that understanding why you do something, if you‘re going to avoid doing it in the future, is what counts.”
Later in his testimony, petitioner stated: “I lost sight of who I was as a human being, what my values were, how I lived my life and the kind of person that I was up until that point in time. I forgot the meaning of my oath, my fiduciary [ ] oath. I forgot the meaning of my sacred vow as a lawyer. I betrayed rather than lived up to the trust that was [re]posed to me by my clients.”
When petitioner was asked why he didn‘t simply allow his business to fail, instead of resorting to stealing from his clients, he responded: “I know I had no right to spend my clients’ money, even if I believed that I could pay it back. I mean borrowing is all . . . that was the state of mind, that we were borrowing[,] is stealing. And the irony of it is also I wound up hurting the very, very same clients that for my whole life I really
Based on our reading of the hearing record in its entirety, the Board‘s conclusion petitioner‘s testimony demonstrated “limited insight” into his criminal behavior is “irrational bordering on impropriety.” Although the Board‘s evaluation of the petitioner‘s credibility is ordinarily entitled to deference, we find the petitioner‘s testimony and the Board‘s conclusion virtually irreconcilable. In order to justify its conclusion, the Board would have had to discredit nearly every word of petitioner‘s testimony, and there is simply no basis on this record to do that.
Supreme Court‘s reasoning in affirming the Board‘s finding that petitioner lacked insight fares no better when compared to the actual record. The court found that petitioner‘s lack of remorse or insight was shown by the way he “attempted to downplay both the seriousness of his crime and his role,” by noting that most of the client victims had been “made whole” by the Lawyers’ Fund and by insinuating that his partner was more culpable. As discussed below, these characterizations are based on distortions of the hearing record.
As evidence of petitioner‘s alleged downplaying of the seriousness of the offense, the Board argued that he “repeatedly” noted that all but one of his former clients was “paid in full” by the Lawyers’ Fund. In fact, however, there are only two references to the clients being paid in full, and, regrettably, the Board failed to provide the context of these statements. The record shows that petitioner‘s statements were in response to specific questions by a board member regarding his plans for future employment and how much money he actually owed. From the context, it is obvious that petitioner was fully cognizant of his own repayment obligations, as confirmed by his subsequent acknowledgment that he is liable for the amounts paid to the victims by the Lawyers’ Fund. Thus, far from “repeatedly” minimizing his conduct, petitioner merely answered the questions put to him, while consistently acknowledging his outstanding personal obligations. The court erred in finding a lack of insight on this basis.
The record also belies the court‘s finding, advocated by the Board, that petitioner tried to minimize his role by shifting the blame to his partner. The Board focused on petitioner‘s testimony that his partner was the one who “ran the business” while he “was on the outside trying cases.” Again, the Board and the court ignored the context by failing to note that these partial quotes were in response to the question: “Who were the partners in the business?” Petitioner‘s complete answer was: “I
As should be plain from the above, the court‘s conclusions regarding lack of insight and remorse were based on an inaccurate reading of the record (see Matter of EK v Travis, 7 Misc 3d 1031[A], 2005 NY Slip Op 50840[U] [Sup Ct, Albany County, Sheridan, J., 2005] [Board‘s reasons for denial were “flawed” in part because of inaccuracies in Board‘s description of petitioner‘s criminal history]; cf. Matter of Hancher v Travis, 1 Misc 3d 903[A], 2003 NY Slip Op 51483[U] [2003] [parole release not irrational where record belies victims’ representatives’ argument that inmate failed to admit guilt at hearing]). Since the factual basis underlying the Board‘s conclusion that petitioner lacked insight into his crimes has been discredited, the Board‘s finding of lack of insight cannot stand. Accordingly, as the sole remaining basis for the Board‘s denial was the seriousness of the offense, such conclusion was irrational bordering on impropriety (see Matter of Weinstein v Dennison, 2005 NY Slip Op 50518[U], * 9 [Sup Ct, NY County 2005]).
The Board‘s decision to deny parole in these circumstances finds no support in the court‘s flawed attempts to distinguish the Marino decisions (Matter of Marino v Travis, Sup Ct, Queens County, 2001, Index No. 22169/00, affd 289 AD2d 493 [2001]; Matter of Marino v Travis, Sup Ct, Queens County, 2003, Index No. 15788/02, affd 13 AD3d 453 [2004]). In Marino, a 78-year-old attorney was convicted of stealing a substantial sum of money from client escrow accounts, just as petitioner was. The similarity continues: Marino received an indeterminate sentence of 3 to 9 years, he was disbarred after his felony conviction, he was a model prisoner and had received an earned eligibility certificate and, having completed his minimum term of imprisonment, he sought parole release pursuant to
The Parole Board denied Marino‘s request, finding a reasonable probability that he would violate the law and be a threat to the community if released, but the trial court found such determination to be irrational and granted his
In the instant case, the Board and the court found Marino distinguishable because of the differences in “their relative ages and health; in the amount of funds misappropriated; and in the number of victims.” With the exception of the age factor, none of these alleged distinctions are supported by the evidence in the respective records. The state of Marino‘s health at the time of the parole denial is disputed by the parties herein, rendering a comparison with this case impossible. Further, while the Board argued in this case that Marino‘s theft of $50,000 pales in comparison to the $4.7 million stolen by petitioner, the record shows that the $50,000 figure cited by the Board reflects the statutory amount charged in the Marino indictment (see
In sum, because the Board‘s conclusion that a “reasonable probability” existed that petitioner would violate the law and be a threat to the community if released was based solely on the nature and severity of his crimes, it is “irrational bordering on impropriety” and must be annulled. A de novo hearing is required at which the Board must consider the appropriate factors in light of the “reasonable probability” standard under
In light of the foregoing, it is unnecessary to address petitioner‘s additional contention that the Board‘s determination violated the pertinent parole regulations (see