Opinion
M–1059
07-02-2019
In the MATTER OF Jaime T. ZEAS, (admitted as Jaime Teodoro Zeas), a suspended attorney: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Jaime T. Zeas, Respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Norma I. Lopez, of counsel), for petitioner. Respondent pro se.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Norma I. Lopez, of counsel), for petitioner.
Respondent pro se.
Hon. John W. Sweeny, Jr., Justice Presiding, Judith J. Gische, Peter Tom, Ellen Gesmer, Anil C. Singh, Justices.
Per Curiam Respondent Jaime T. Zeas was admitted to the practice of law in the State of New York by the First Judicial Department on October 7, 2003, under the name Jaime Teodoro Zeas. Respondent's registered address is in Maryland.
On February 3, 2017, respondent was convicted, following a nonjury trial, in Circuit Court, McHenry County, Illinois, of child pornography in violation of 720 Illinois Compiled Statutes § 5/11–20.1(a)(1)(vii), a class 1 felony. On June 14, 2017, respondent was sentenced to four years' imprisonment and fined $3,000.
In May 2017, the Illinois Supreme Court suspended respondent on an interim basis, until further order of the court, based on his conviction.
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Respondent's conviction arises from a secret video recording he made in 2009 of a 14–year–old while she changed her clothes in a health club bathroom.
The Attorney Grievance Committee (AGC) now seeks an order striking respondent's name from the roll of attorneys, pursuant to Judiciary Law § 90(4)(a) and (b) and Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.12(c)(1), on the grounds that he was convicted of a felony as defined by Judiciary Law § 90(4)(e), and has therefore been automatically disbarred. Alternatively, the AGC requests that respondent's conviction be deemed a "serious crime" ( Judiciary Law § 90[4][d] ), he be immediately suspended ( Judiciary Law § 90[4][f] ), and that this matter be referred for a sanction hearing ( Judiciary Law § 90[4][g] ).
The AGC asserts that respondent failed to promptly report his conviction as required by Judiciary Law § 90(4)(c).
Respondent consented to service of the Committee's motion by mail at his registered address in Maryland but he has not submitted a response. The Committee contends that automatic disbarment is warranted because respondent's Illinois felony conviction for child pornography, if committed in New York, would constitute the felony of unlawful surveillance in the second degree ( Penal Law §§ 250.45[3][a] and 250.45[5][c] ).
Judiciary Law § 90(4) provides for the automatic disbarment of an attorney convicted of a "felony," which is defined as "any criminal offense committed in any other state ... classified as a felony therein which if committed within this state, would constitute a felony in this state" ( Judiciary Law § 90[4][e] ; Matter of Rosenthal, 64 A.D.3d 16, 18, 880 N.Y.S.2d 603 [1st Dept. 2009] ). The out-of-state felony does not have to be a "mirror image" of a New York felony, but must be "essentially similar" ( Matter of Margiotta, 60 N.Y.2d 147, 150, 468 N.Y.S.2d 857, 456 N.E.2d 798 [1983] ).
We begin our review by comparing the language of the applicable felony statutes, as well as an examination of our precedent pertaining to the out-of-state felony at issue. If this initial analysis is inconclusive, "essential similarity" may be established by admissions made under oath during a plea allocution or evidence adduced at trial, read in conjunction with the indictment or information (see e.g. Matter of Fengling Liu, 153 A.D.3d 45, 58 N.Y.S.3d 375 [1st Dept. 2017] ); Matter of Adams, 114 A.D.3d 1, 2–3, 977 N.Y.S.2d 248 [1st Dept. 2013] ; Matter of Simels, 94 A.D.3d 108, 111, 940 N.Y.S.2d 577 [1st Dept. 2012] ).
The Committee contends that respondent's felony conviction for child pornography under 720 Illinois Compiled Statutes § 5/11–20.1(a)(1)(vii) is essentially similar to the New York felony conviction of unlawful surveillance in the second degree ( Penal Law §§ 250.45[3][a] and 250.45[5][c] ).
It does not appear that this Court has previously compared the language of the two statutes at issue. There is a facial dissimilarity in that the New York statute requires that the subject of the surreptitious video recording have had a "reasonable expectation of privacy" and that the video recording had been made "without such person's knowledge or consent."
Notwithstanding, this facial dissimilarity, the AGC contends that "essential similarity" is established by looking to the evidence introduced at respondent's trial which "demonstrated that Respondent intentionally installed an imaging device and recorded a child under the age of 18, undressing in a changing room without her knowledge or consent." We agree that the evidence introduced at respondent's criminal trial, read in conjunction with the indictment under which he was convicted, satisfies the elements of unlawful surveillance in the second degree under Penal Law § 250.45(3)(a) in that respondent, for no legitimate purpose, made a surreptitious video recording of a 14–year–old "without [her] knowledge or consent" while she changed her clothes in a health club bathroom in which she had "a reasonable expectation of privacy."
Our research also reveals other felony convictions similar to that of respondent analogous to New York felonies (see e.g. Matter of Duffy, 159 A.D.3d 98, 70 N.Y.S.3d 508 [1st Dept. 2018] ; Matter of Serenbetz, 144 A.D.3d 21, 39 N.Y.S.3d 26 [1st Dept. 2016] ; Matter of De Sear, 124 A.D.3d 139, 996 N.Y.S.2d 283 [1st Dept. 2014] ; Matter of Hanson, 45 A.D.3d 1246, 845 N.Y.S.2d 766 [3d Dept. 2007] ; cf. People v. Schreier, 22 N.Y.3d 494, 498–499, 982 N.Y.S.2d 822, 5 N.E.3d 985 [2014] ).
Accordingly, the Committee's motion should be granted to the extent of striking respondent's name from the roll of attorneys and counselors-at-law in the State of New York, and disbarred effective nunc pro tunc to February 3, 2017.
All concur.
Order filed. [July 2, 2019]
The Committee's motion is granted to the extent that respondent's name is stricken from the roll of attorneys and counselors-at-law in the State of New York pursuant to Judiciary Law § 90(4)(b), and he is disbarred, effective nunc pro tunc to February 3, 2017.