By Scheinkman, P.J.; Mastro, Dillon, Balkin, Chambers, JJ. IN THE MATTER OF WILLIAM J. O’HAGAN, AN ATTORNEY AND COUNSELOR-AT-LAW; GRIEVANCE COMMITTEE FOR THE NINTH JUDICIAL DISTRICT, pet; WILLIAM J. O’HAGAN, res — (Index No. 2263473) The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 10, 1989. By decision and order on motion of this Court dated April 8, 2019, the respondent was directed to show cause at a hearing pursuant to 22 NYCRR 1240.12(c)(2)(iv) before John J. Halloran, Jr., as Special Referee, why a final order of suspension, censure, or disbarment should not be made based on his conviction of a serious crime. Gary L. Casella, White Plains, NY (Glenn E. Simpson of counsel), for Grievance Committee for the Ninth Judicial District. Feerick Nugent MacCartney, PLLC, South Nyack, NY (Donald J. Feerick, Jr., of counsel), for respondent. PER CURIAM. On April 13, 2018, in the County Court, Albany County, before the Honorable Peter A. Lynch, the respondent was convicted, upon a plea of guilty, of criminal tax fraud in the fifth degree, a class A misdemeanor. He was sentenced to a conditional discharge of one year and directed to perform 200 hours of community service. Special Referee’s Report Following a hearing held on June 13, 2019, the Special Referee concluded that the respondent, having conceded that he was convicted of a serious crime, should be publicly disciplined. Based on the entire record, the Special Referee found that the respondent’s testimony was forthright and credible; that he demonstrated substantial mitigating factors (unintentional mistake, unblemished disciplinary history, cooperation and candor, genuine remorse, misconduct unrelated to the practice of law, payment of tax liabilities, character evidence, community service); and that there were no aggravating factors. Specifically, on the issue of the respondent’s intent, the Special Referee found as follows: “Respondent’s tax offense was rooted in an unintentional and inadvertent mistake. Respondent has consistently demonstrated that his admitted failure to file was predicated on his mistaken belief that his New York State tax obligations were satisfied by his then-employer’s composite tax filing. The uncontroverted evidentiary record shows that Respondent was forthright and consistent in explaining that mistake to the New York State tax authorities, the Albany County District Attorney’s Office, the Grievance Committee for the Ninth Judicial District, this Court, and the undersigned Special Referee at the pre-hearing conference on May 7, 2019, and the hearing on June 13, 2019. There has been no showing that Respondent’s failure to file was done with conscious disregard of his tax obligations, with intent to evade taxes, or with venal intent, and indeed, the undersigned finds that the evidence shows the opposite. Simply put, Respondent made an honest mistake.” Motion to Confirm The Grievance Committee now moves to confirm the report of the Special Referee and its findings, noting the absence of any prior disciplinary history. In response, the respondent contends that the appropriate discipline is a public censure based on the mitigating factors as summarized by the Special Referee in his report. Findings and Conclusion We find that public discipline should be imposed, and accordingly, the Grievance Committee’s motion to confirm the report of the Special Referee is granted. The hearing evidence established that the respondent’s failure to file and pay was not due to a conscious effort to avoid his tax obligations, but was due to a misunderstanding of his tax obligations as a participant in his employer’s composite tax return program. In view of the absence of any aggravating factors, and the substantial mitigating factors that were elicited at the hearing, which include the facts that the respondent made an honest mistake; harbored no venal intent; was genuinely remorseful; has an unblemished disciplinary history; cooperated not only with the Grievance Committee, but also with the State Investigator and the District Attorney’s Office; engaged in misconduct unrelated to the practice of law; filed the missing returns and paid all taxes due, including interest and penalties, prior to his arrest; enjoyed an excellent reputation; and has a strong record of community service, we conclude that the respondent’s misconduct warrants the imposition of a public censure. SCHEINKMAN, P.J., MASTRO, DILLON, BALKIN and CHAMBERS, JJ., concur. ORDERED that the Grievance Committee’s motion to confirm the report of the Special Referee is granted; and it is further, ORDERED that the respondent, William J. O’Hagan, is publicly censured for his professional misconduct.
By Mastro, J.P.; Chambers, Iannacci, Christopher, JJ. IN THE MATTER OF KATIE P. H. (ANONYMOUS). WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, res; LATOYA M. (ANONYMOUS), app — (Index No. NN-04157-17) William D. Eddy, Jr., White Plains, NY, for appellant. John M. Nonna, County Attorney, White Plains, NY (Linda M. Trentacoste and Allison Burke of counsel), for respondent. Gloria Marchetti-Bruck, White Plains, NY, attorney for the child. In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Nilda Morales Horowitz, J.), dated January 14, 2019. The order, inter alia, after a fact-finding hearing, found that the mother neglected the subject child. ORDERED that the order of fact-finding and disposition is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith. The Westchester County Department of Social Services (hereinafter DSS) commenced this proceeding pursuant to Family Court Act article 10 alleging that the mother neglected the subject child by, inter alia, repeatedly hitting the child’s maternal grandmother and using a Taser to further harm her in the child’s presence. The Family Court conducted a fact-finding hearing over the course of several days, during which the mother was present, and the maternal grandmother and a DSS caseworker testified. On the fifth day of the hearing, the mother was late in arriving to court because she allegedly was traveling by bus from Georgia to New York, and the bus was delayed. The mother’s counsel notified the court of the mother’s transportation issue, and of her intention to testify, and requested an adjournment. The court denied the adjournment request and directed that the hearing proceed as scheduled. The mother arrived shortly after summations, but the court did not reopen the hearing to afford the mother the opportunity to testify. Following the hearing, the Family Court found that the mother neglected the child. By order of fact-finding and disposition dated January 14, 2019, the court, inter alia, determined that the mother neglected the child. The mother appeals. A finding of neglect constitutes “a permanent and significant stigma” which might indirectly affect the mother’s status in future proceedings (Matter of Justin P. [Damien P.], 148 AD3d 903, 904; Matter of Grayson J. [Sharon H.], 119 AD3d 575, 577). The Family Court has the authority to reopen a Family Court Act article 10 proceeding to allow a party to present additional testimony at a fact-finding hearing (see e.g. Matter of Dior Z.J. [Dior J.], 139 AD3d 1065; Matter of Dutchess County Dept. of Social Servs. v. Shirley U., 266 AD2d 459, 459-460). Under the circumstances of this case, the Family Court should have exercised its discretion to reopen the fact-finding hearing to afford the mother the opportunity to present her case. The mother’s remaining contentions are either without merit or need not be reached in light of our determination. Accordingly, we remit the matter to the Family Court, Westchester County, for a continued fact-finding hearing for the mother to present her case and a new determination of DSS’s petition thereafter. MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.
