Opinion
2015-03-18
In the Matter of Dennis Steven BERKOWSKY, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Dennis Steven Berkowsky, respondent.
MOTION by the Grievance Committee for the Tenth Judicial District to strike the respondent's name from the roll of attorneys and counselors-at-law, based on his conviction of, inter alia, bank fraud. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 29, 1981.Mitchell T. Borkowsky, Hauppauge, N.Y. (Daniel M. Mitola of counsel), for the petitioner.
MOTION by the Grievance Committee for the Tenth Judicial District to strike the respondent's name from the roll of attorneys and counselors-at-law, based on his conviction of, inter alia, bank fraud. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 29, 1981.
Mitchell T. Borkowsky, Hauppauge, N.Y. (Daniel M. Mitola of counsel), for the petitioner. PER CURIAM.
On August 10, 2011, upon a plea of guilty in the United States District Court for the Southern District of New York, the respondent was convicted of bank fraud, in violation of 18 U.S.C. § 1344, and conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, both class B federal felonies. On September 11, 2013, the respondent was sentenced, inter alia, to time served, supervised release for one year, an order of forfeiture of $48,000, and a fine of $12,500.
Pursuant to Judiciary Law § 90(4), a lawyer is automatically disbarred upon his or her conviction of a felony committed under the laws of this state. Conviction of a felony under federal law, that is essentially similar to a felony under New York law, also triggers automatic disbarment. As stated by the Court of Appeals in Matter of Margiotta, 60 N.Y.2d 147, 150, 468 N.Y.S.2d 857, 456 N.E.2d 798:
“The Judiciary Law provides for automatic disbarment when an attorney is convicted of a felony. Under this section, an offense committed in any other State, district or territory of the United States where it is classified as a felony is determined to be a felony when it ‘would constitute a felony in this state.’ (Judiciary Law § 90, subd. 4, par. e.) For purposes of this determination, the felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must have essential similarity.”
The federal felony of bank fraud has been found to be essentially similar to the New York felonies of grand larceny in the second degree, a class C felony in violation of Penal Law § 155.40, and scheme to defraud in the first degree, a class E felony in violation of Penal Law § 190.65 ( see e.g. Matter of Kaplan, 96 A.D.3d 16, 942 N.Y.S.2d 566; Matter of Claydon, 48 A.D.3d 146, 848 N.Y.S.2d 314; Matter of Powder, 36 A.D.3d 283, 826 N.Y.S.2d 82).
By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a). Although he was duly served with the papers in connection with the instant motion, the respondent submitted no response.
Accordingly, the Grievance Committee's motion to strike the respondent's name from the roll of attorneys pursuant to Judiciary Law § 90(4)(b) is granted to reflect the respondent's automatic disbarment on August 10, 2011.
ORDERED that the Grievance Committee's motion is granted; and it is further,
ORDERED that, pursuant to Judiciary Law § 90(4)(a), the respondent, Dennis Steven Berkowsky, is disbarred, effective August 10, 2011, and his name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b); and it is further,
ORDERED that the respondent, Dennis Steven Berkowsky, shall comply with this Court's rules governing the conduct of disbarred, suspended, and resigned attorneys ( see 22 NYCRR 691.10); and it is further,
ORDERED that pursuant to Judiciary Law § 90, the respondent, Dennis Steven Berkowsky, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and its is further,
ORDERED that if the respondent, Dennis Steven Berkowsky, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).
ENG, P.J., MASTRO, RIVERA, SKELOS, and DILLON, JJ., concur.