New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle B - Courts › Chapter IV - Supreme Court › Subchapter D - Fourth Judicial Department › Article 1 - Appellate Division › Subarticle B - Special Rules › Part 1020 - INDIGENT CRIMINAL APPEALS MANAGEMENT PROGRAM › Section 1020.8 - Proceedings in the Appellate Division

Current through Register Vol.
						  46, No. 28, July 10, 2024
(a)
Petition.
When a committee authorizes charges of professional
							 misconduct against a respondent, the chief attorney shall file in the Appellate
							 Division an original notice of petition and verified petition, together with
							 five copies thereof with proof of service of one copy on the respondent. Unless
							 otherwise directed by the Appellate Division, the proceeding shall be made
							 returnable at 2:00 p.m. on the last Tuesday of a scheduled term of the court.
							 The notice of petition and petition shall be served in the manner set forth in
							 Judiciary Law, section 90(6), and with sufficient notice to all parties, as set
							 forth in the CPLR, and shall be filed at least 30 days prior to the return date
							 thereof.
(b)
Answer.
The respondent shall file in the Appellate Division
							 an original verified answer to a petition, together with five copies thereof
							 with proof of service of one copy on the chief attorney or staff counsel,
							 within 20 days from the date of service of the petition. The respondent in the
							 answer shall respond to each allegation of the petition by either admitting the
							 allegation, denying the allegation as known or believed by the respondent to be
							 untrue, or specifying that the respondent lacks knowledge or information
							 sufficient to form a belief as to the truth of the allegation, which shall have
							 the effect of a denial. The respondent in the answer shall additionally plead
							 any affirmative defense to the charges, and may also set forth matters in
							 mitigation.
(c)
Default.
In the event a respondent fails to file an answer
							 within the time period specified under these rules, the chief attorney may file
							 in the Appellate Division a motion for an order finding the respondent in
							 default, deeming the material allegations of the petition admitted by the
							 respondent, and granting any other relief provided by law and warranted under
							 the circumstances, which may include an order suspending the respondent during
							 the pendency of the proceeding, pursuant to section
							 1240.9 of this Title. Unless
							 otherwise directed by the court, any motion for an order finding the respondent
							 in default shall be filed in accordance with subdivision (h) of this section
							 and include proof that a copy of the motion papers were delivered personally to
							 the respondent at least 10 days prior to the return date of the motion. The
							 respondent shall personally appear before the Appellate Division on the return
							 date of any such motion.
(d)
Hearing.
When one or more parties to the proceeding files a
							 statement of disputed facts, pursuant to section
							 1240.8(a)(2) of
							 this Title, which in the discretion of the court establishes the existence of
							 an issue of fact for which a hearing is necessary, the court may refer the
							 matter to a justice of the Supreme Court or referee designated by the Appellate
							 Division for a hearing on such issue. The referee may additionally receive
							 evidence regarding any disputed aggravating factor raised in the petition or
							 defense or mitigating factor raised in the answer. The referee shall thereafter
							 file with the Appellate Division a written report setting forth findings of
							 fact with respect to all issues of fact and making an advisory determination as
							 to whether the committee has established, by a preponderance of the evidence,
							 each element of the charge or charges of misconduct. The referee shall not make
							 a recommendation as to an appropriate sanction. Unless otherwise directed by
							 the Appellate Division, the referee shall give the matter a preference, shall
							 schedule the hearing on consecutive dates, to the extent possible, and shall
							 complete the hearing within 60 days following the date of the entry of the
							 order of reference. The parties shall make final submissions to the referee,
							 including proposed findings of fact, if any, within 15 days following the date
							 on which the stenographic transcript of the minutes of the hearing is completed
							 and provided to the parties, and the referee's report shall be completed within
							 30 days after final submissions are made by the parties.
(e)
Subpoenas.
Unless otherwise directed by the court, an
							 application by any party for a subpoena seeking the attendance of a witness or
							 the production of books and papers before the court or a referee appointed by
							 the court, pursuant to section
							 1240.8(a)(4) of
							 this Title, shall not be made until after the entry of an order of the
							 Appellate Division referring the matter for a hearing. The application shall be
							 supported by an affirmation setting forth facts sufficient to demonstrate that
							 the testimony or books and papers specified therein are relevant to a disputed
							 fact in the matter and that a judicial subpoena is necessary to obtain such
							 testimony or books and papers. The application shall also be on notice to all
							 parties to the proceeding, and the court may direct such further notice as
							 justice may require. The court may refer the application for consideration and
							 recommendation or determination by the referee.
(f)
Appearance in mitigation.
When no issue of fact is raised by the pleadings, or
							 after completion of the hearing and report on issues of fact, the court shall
							 fix a time at which the respondent may be heard in mitigation or otherwise,
							 unless the respondent waives in writing the privilege to be
							 heard.
(g)
Written
						  materials in mitigation.
Unless otherwise directed by the court, the
							 respondent may file with the court written materials setting forth matters in
							 mitigation at any time up until 20 days before any date fixed by the court for
							 the respondent to be heard in mitigation.
(h)
Applications and motions to the
						  Appellate Division.
(1) Return date. A
						  motion or application to the Appellate Division concerning any matter governed
						  by Part 1240 or this Title shall be made returnable at 2:00 p.m. on the last
						  Tuesday of a scheduled term of the court or any other date specified by the
						  court.
(2) Necessary papers. Unless
						  otherwise approved by the court, the moving party shall file with the Appellate
						  Division, no later than 20 days prior to the return date of the motion or
						  application, an original notice of motion and any papers in support of the
						  motion or application, together with five copies thereof, proof that one copy
						  has been served on all other parties to the proceeding, and a check payable to
						  the Appellate Division, Fourth Department, in the amount of $45 in payment of
						  the motion fee. Any motion or application for resignation from the practice of
						  law or reinstatement to the practice of law shall additionally comply with any
						  applicable section of Part 1240 of this Title, such as sections
						  1240.10 (resignation while
						  investigation or proceeding is pending); 1240.16 (reinstatement of disbarred or
						  suspended attorneys); 1240.22(a) (resignation for non-disciplinary reasons); or
						  1240.22(b) (reinstatement of attorney resigned for nondisciplinary
						  reasons).
(3) Responding papers.
						  Answering affidavits and a notice of cross motion, if any, shall be served and
						  filed with the Appellate Division no later than 10 days prior to the return
						  date of the motion. Reply papers or papers in response to a cross motion, if
						  any, must be served and filed with the Appellate Division no later than five
						  days prior to the return date of the motion.
(4) Oral argument. Oral argument of motions
						  in disciplinary matters is not permitted unless otherwise directed by the
						  court.