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Information from expunged criminal records still available to licensing board

A New York court denied a motion for  of an attorney who was convicted of aggravated harassment after making threatening phone calls to his black neighbors in 2010.

(In the Matter of Hennessey). The attorney made almost 200 racist phone calls to 38 people before he was caught, at one point threatening to kill or kidnap people.

Although the lawyer of the attorney, James Hennessey, claimed that Hennessey had been suffering from mental problems and asked for leniency, at the time of his initial conviction, the Albany Times Union quotes Hennessey as stating, “It was almost like a teenage prank thing. I saw how to do it on TV. I made a quick prank call, then a couple of weeks later I did it again. Shortly thereafter, I got carted off.”

The calls themselves, as reported in the Times Union, were vicious. Hennessey used software to make his calls appear to be coming from the Ku Klux Klan. He threatened to kill a black woman in his neighborhood. And, at one point, he told a victim that “we are going to kidnap the little black boy who plays outside and tie him up.”

After his conviction, Hennessey was automatically disbarred under New York law. However, in 2014, the convictions were vacated, after the New York Court of Appeals, in a separate case, found the statute under which Hennessey was prosecuted to be unconstitutional. His criminal case file was then sealed.

Following that decision, Hennessey applied for reinstatement. But the New York Committee on Professional Standards opposed the application, arguing that Hennessey had not been cleared of the actions underlying the conviction.

Initiating a new investigation of Hennessey, the Committee filed new disciplinary charges based on his actions. Hennessey then moved to dismiss the new charges, arguing that they were based on information from his now-sealed criminal case.

However, the Supreme Court of New York, Appellate Division, 3rd Department, hearing the motion, rejected it. The court noted that, although Hennessey’s criminal case was sealed, the same information could be obtained from the board’s earlier discipline action and was, thus, accessible to the board.