What happened in a bar between a couple drunken people ordinarily doesn’t make the front page. But then, it doesn’t ordinarily involve a lawyer and a former Manhattan Assistant District Attorney either. Eli Cherkasky was both, and was convicted after a non-jury trial for his actions.
Eli Karl Cherkasky was convicted in 2015 of “criminal obstruction of breathing or blood circulation and assault in the third degree and harassment in the second degree,” the court recounted. He had been “drinking heavily for many hours” when he got into a verbal altercation with a woman that ended up getting physical, it said.
According to Cherkasky, the woman hit him in the eye with her arm [which was sufficiently severe to cause him a black eye] and then threw a beer at him.
The parties’ joint stipulation of facts said that Cherkasky then knocked the woman “against a railing, tackled her to the floor, kneeled on top of her, grabbed her neck and struck her in the face.”
The details are a bit more complicated, as recounted in the decision of the Appellate Division, First Department, which deals with attorney grievances, by the following justices: David Friedman, Dianne T. Renwick, Sallie Manzanet-Daniels, Cynthia S. Kern, Lizbeth González. They all concurred.
During his examination under oath (EUO) before the Committee, respondent accepted responsibility for his conduct, expressed remorse for his treatment of the complainant, admitted that his conduct was “unacceptable,” that he had “engaged when he should not have engaged,” he “drank too much and exercised poor judgment” and that his conduct was “unbecoming of a 35-year-old-man . . . and unbecoming of an assistant district attorney.”
The hearing referee recommended a private sanction.
At the sanction hearing, the complainant, respondent and three character witnesses testified. The complainant testified that she dealt with both physical and severe emotional consequences following the assault. Respondent testified that he benefitted greatly from the alcohol abuse treatment program he enrolled in, that he continued to suffer repercussions due to his actions but that he understood he was responsible for his actions. The character witnesses’ testimonies painted a very favorable picture of respondent, that he was a hard worker and a role model for younger attorneys, that he was sensitive and thoughtful and not a violent or aggressive person and that respondent had been drinking heavily at that time in his life but that he had now stopped. A joint stipulation of facts and a video from the security camera at the bar where the altercation occurred were also submitted at respondent’s EUO before the Committee.
The Referee was not convinced that respondent had accepted the degree to which his actions had affected the complainant, which was based, in large part, on the Referee’s finding that respondent had not issued a sincere, direct apology to the complainant. However, the Referee concluded that, based on the time that had passed, his belief that respondent would not have assaulted the complainant had he not been drunk and that respondent had turned his life around by stopping drinking and taking upon the burden of raising a family, a private sanction would be appropriate.
The court found this inadequate, based upon the seriousness of the assault.
Respondent’s misconduct of drinking heavily and assaulting a woman in a bar is disturbing and was appropriately the subject of criminal proceedings.
The court rejected the issuance of a private sanction and imposed a two-month suspension from the practice of law, while simultaneously noting his “aberrational nature of respondent’s behavior and his otherwise good character and fitness to practice.”
What is striking is that there are some very obvious questions left unaddressed here, the first of which is that he didn’t initiate physical force, but responded to it. Having been struck in the eye with sufficient force to cause a black eye, and then having a beer thrown on him, was he to stand there? He had earlier been confronted and walked away, but after being attacked, the issue should have been about his excessive use of force rather than his use of force to prevent further attack.
The second oddity is that Cherkasky was prosecuted and convicted, for which a sentence was imposed.
On November 5, 2015, respondent was sentenced to a one-year conditional discharge, 12 weeks of treatment for alcohol abuse and 10 days of community service. Respondent has completed all of these conditions.
To the extent he deserved punishment for his conduct, that was the purpose of sentence. Whether you believe it was sufficient is a separate matter; it’s the punishment the judge imposed. But the grievance filed against him, and the sanction imposed upon the grievance, is punishment atop punishment because he was a lawyer.
What does a drunken bar fight have to do with being a lawyer? People get drunk and do stupid things, and lawyers are people. Had this been related in any way to the practice of law, it would be one thing. Had this involved moral turpitude, it would be another thing. But this was a drunken guy in a bar, which could happen to a lawyer as well as a carpenter, and would reflect no more on his practice of law than his ability to cut miters.
The third curiosity is that the opinion expressly noted that this drunken bar fight involved a man assaulting a women. His gender was stated six times, and the male pronoun another 13. Hers twice, plus the feminine pronoun another ten times. Would the outcome, the seriousness, have been different had it not been a man assaulting a woman? Should it make any difference that Cherkasky was male and the person who initiated the use of force against him female?
Granted, Cherkasky’s lack of chivalry and self-control was clear, and reflected poorly on him. The old tenet that a man does not strike a woman certainly comes into play. But was that the impetus for the court to impose a two-month suspension on top of the sentence imposed by the court, above what the sanction referee would have imposed? There is no doubt that Cherkasky didn’t cover himself in honor for his actions here, but was the suspension because of his excesses or did he just get “Metoo’d”?
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“The old tenet that a man does not strike a woman certainly comes into play.”
Sorry, got to call BS on this. If anybody, male OR female, hits you in the face hard enough to cause a black eye you are morally allowed to defend yourself. Perhaps he was excessive in his response, but to categorically state that a man can never hit a woman and has to just take being beaten on is wrong. Was she also arrested and charged with assault in this event, and if not why?
Yes, he got “Metoo’d”, the court piling on with additional punishments after he served his sentence reeks of double jeopardy to me.
“If anybody, male OR female, hits you in the face hard enough to cause a black eye you are morally allowed to defend yourself.”
Agreed. But did the “attack” continue?
How is knocking the woman “against a railing, tackled her to the floor, kneeled on top of her, grabbed her neck and struck her in the face.” defensive?
Defense does not include an all out assault on the former attacker.
The stories and the Appellate Division opinion both recite that the conviction was entered in 2015, but I failed to spot an incident date. The sentence, after a non-jury trial (not a plea), included a “conditional discharge,” which I infer means that after satisfactory completion of the conditions, the conviction would go away. I don’t know whether such arrangements are common in the locality, but where I live and play, few people get to go to trial and still get a conditional dismissal or its equivalent (they often do get them upon pleas to 1st offense domestic violence), but I hazard a conjecture that the trial may have been a collusive one to avoid an admission of guilt. In 2017 (per the AD opinion), a discipline proceeding was commenced, and on 7/10/2019, a referee issued a recommendation, which, it appears to this out-of-towner, was required to be submitted to the Appellate Division for consideration and action, which it did March 10, 2020. Cherkasky was likely practicing law the entire time. The court imposed a two-month suspension in order to “maintain the honor and integrity of the profession and deter others from committing similar misconduct.” No mention was made of protecting the public from substandard legal practice during the approximate lustrum the proceedings required. Maybe he was “Metoo’d.” Or maybe he was given a
giganticbreak that someone who had not been a former ADA would not have received. Someone with more local knowledge may have a better surmise.Very, very rarely would a case like this be prosecuted at all, give the absence of any physical injury, a required element of third degree assault, an A misdemeanor. If I was conspiratorial-minded, like some (ahem) other people, I might surmise that the only reason he was prosecuted was because he was an ADA, not cut a break. As for the CD, one would have to ask the judge (whoever that may be) to find out whether he or she or they or xem was doing the ADA a mitzvah or the dirty.
Conditional discharge does not take away conviction. It’s not adjournment in contemplation of dismissal.
Thanks for adding that, which I failed to note. Outside of NY, people tend not to know about ACD’s.
I quickly looked at NY Penal Law 65.05. If I read it correctly, In these parts, it’s called “unsupervised probation.” Yes, I know googling is not even a poor substitute for professional expertise. Regarding whether the victim sustained any injury, I saw a reference to “both physical and severe emotional consequences,” in the OP and in the Bloomberg linked article, a stipulation in the disciplinary proceeding “that Cherkasky then knocked the woman “against a railing, tackled her to the floor, kneeled on top of her, grabbed her neck and struck her in the face.”” The AD opinion included the statement, “(t)he evidence before the Referee clearly established the seriousness of respondent’s assault on the complainant.” I concede I found no litany of physical wounds. I don’t mean to quarrel; I am curious regarding the custom in your neck of the woods, and am unfamiliar with the Empire State’s penal laws’ nomenclature. I also don’t know under what circumstances or even when Cherkasky ceased to be an assistant district attorney. Or anything else about the gent. But I am aware of the concept Bill Buckley once rendered as, quod licet jovi, non licet bovi. And of the related precept, pour encourager le autres. Thanks, Admiral, for the fun.
No one.
No one at all.
Greenfield: it’s outrageous that drunkenly beating women can get you two months suspension on top of a wrist also sentence!
Sir, perhaps you need to get laid. You’re starting to sound like an incel.
Much as I appreciate your concern for my sex life, this is a family blawg, Jay.
I sense you are on the verge of the epiphany that women have become more equal than men
You may be on to something.
The popular reasoning in cases of female on male violence is that the man is usually bigger and stronger, and he should not retaliate because of the potential for greater injury. Fair enough, although the logic here seems to imply that a smaller man should be able to assault a bigger man and get away with it. Manlets of the world, listen up! You have the right to go into bars and clobber the biggest dudes there, and they should just take it and apologize for their body-size privilege. As long as you don’t pick on men high up the victimology totem pole, the increasingly woke law should be on your side, little guy, or at least be highly sympathetic. It’s true that there may be some risks in this approach. Not recommended for the brittle boned or those without health insurance.
The problem when you take a rationale, leap over the details to create an analogous rubric, and then run blindly down the road with that rubric is that you end up with a comment like this, which may not be remotely helpful.