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In re Pleva

Decided: June 4, 1987.

IN THE MATTER OF DAVID J. PLEVA, AN ATTORNEY AT LAW


On an order to show cause why respondent should not be disbarred or otherwise disciplined.

For suspension -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi.

Per Curiam

This is an attorney-disciplinary case. On November 15, 1982, respondent, David J. Pleva, pleaded guilty to charges of possession of cocaine in violation of N.J.S.A. 24:21-20a(1) and possession of over five grams of hashish and possession of over twenty-five grams of marijuana in violation of N.J.S.A. 24:21-20a(4). He also pleaded guilty to two counts of another indictment charging him with giving false information when completing a certificate required by law before purchasing firearms, contrary to N.J.S.A. 2C:39-10c. Respondent was sentenced on February 4, 1983. He was placed on probation for two years, fined $1,000 and given a term of sixty days in the Morris County jail to be served sometime during the probationary period. On December 3, 1985, this sentence was modified to permit respondent to serve the custodial sentence on consecutive Sundays by participating in the county jail's farm program.

Three weeks after respondent's convictions, the Office of Attorney Ethics filed a motion with the Disciplinary Review Board (DRB or Board) to have respondent temporarily suspended. This motion was denied. Thereafter, the Office of Attorney Ethics filed a motion with the Board for final discipline

pursuant to Rule 1:20-6(b)(2)(i). Respondent's motion for a stay of all action by the Board because of pending proceedings was denied by order of this Court dated May 20, 1986. On May 21, 1986, a hearing was held before the Board. On October 2, 1986, the Board, by a six-member majority, recommended a private reprimand for respondent's firearms offenses and, by a five-member majority, recommended a six-months suspension from the practice of law for his drug-related offenses. On December 4, 1986, this Court entered an order to show cause why respondent should not be disbarred or otherwise disciplined.

I.

Respondent does not contest the Board's conclusion that his convictions constitute dispositive evidence of violations of the Rules of Professional Conduct. Respondent contends, however, that this Court should not follow the Board's recommendation that he be suspended from the practice of law for a period of six months as discipline for his drug-related offenses. He apparently does not contest the recommendation of a private reprimand for the firearms conviction.

In disciplinary proceedings against an attorney, a criminal conviction is conclusive evidence of respondent's breach of ethics. R. 1:20-6(b)(1); Matter of Coruzzi, 98 N.J. 77 (1984). Thus, there is no need for this Court to make an independent examination of the underlying facts in order to ascertain guilt. Matter of Bricker, 90 N.J. 6, 10 (1982). The sole question involved in such a case is the extent of discipline to be imposed. R. 1:20-6(b)(2)(ii); Matter of Infinito, 94 N.J. 50, 56 (1983). The underlying facts may be relevant to this question. Matter of Rosen, 88 N.J. 1 (1981). To this end, we have examined the facts and circumstances surrounding these convictions. Our findings parallel those of the DRB.

On the afternoon of June 23, 1981, local police were notified that shots had been fired from inside respondent's home in

Randolph Township. Officers arrived at the scene, knocked on the front door and asked respondent whether he had heard any shots. Respondent did not speak. Instead, moving very slowly, he "held out his hand pointing his index finger in such a way as to resemble a hand gun. He then moved his thumb downward as would the hammer of a gun being fired." Respondent later admitted that he had fired the gun. During the course of this confrontation, an officer noted that respondent's pupils were dilated and that his speech and comprehension seemed delayed. The officer concluded that respondent was under the influence of some substance, and a search of the house turned up a variety of drugs. These facts gave rise to the indictment charging violations of Title 24.

The search also produced the shotgun that had been fired, as well as another rifle. Police investigation revealed that respondent had purchased a rifle and a shotgun two weeks earlier, on June 6, 1981, from a sporting goods store in Denville. In connection with the weapons purchase, respondent completed a Federal Firearms Transaction Record and a New Jersey Certificate of Eligibility. Respondent answered "no" to a question on the federal form that asked whether he was "an unlawful user of, or addicted to, marijuana, or a depressant, stimulant, or narcotic drug." However, the police investigation had uncovered a hand-written statement that respondent had given to police following an arrest on February 18, 1981 -- prior to the weapons purchase in question -- for possession of quaaludes; the statement disclosed that respondent had smoked a small amount of hashish and had taken some valium. These facts were relevant to the indictment charging a violation of N.J.S.A. 2C:39-10c.

Respondent unsuccessfully sought to suppress the evidence obtained from the search of his premises. He thereafter entered guilty pleas to the charges, reserving the right to challenge later the validity of the search and seizure. As noted, respondent was sentenced on February 4, 1983. The ...


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