Opinion
July 3, 2008.
Respondent was admitted to practice by this Court in 1993. His last known address is in Tampa, Florida.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.
On November 9, 2007, respondent was sentenced in the United States District Court for the Middle District of Florida upon his plea of guilty to the federal felony of wire fraud affecting a financial institution in violation of 18 USC § 1343. According to respondent's plea agreement, he entered into a scheme to defraud companies who process electronic credit card transactions by submitting false bills to the companies. No actual monetary losses occurred because the bills were rejected by the processors as suspicious. He was sentenced to one year home detention, five years of probation and a $30,000 fine.
Petitioner moves for an order striking respondent's name from the roll of attorneys pursuant to Judiciary Law § 90 (4) (a) and (b) based upon his conviction of the federal felony Respondent has not replied to the motion or otherwise appeared in this matter.
An attorney convicted of a federal felony essentially similar to an offense classified as a felony under New York law is automatically disbarred ( see Judiciary Law § 90 [a], [e]; Matter of Margiotta, 60 NY2d 147, 150). An attorney convicted of a federal felony without such a New York analogue is guilty of a serious crime and shall be suspended by the Appellate Division until a final disciplinary order is entered ( see Judiciary Law § 90 [d], [f]; Matter of Johnston, 75 NY2d 403, 405).
Petitioner contends that 18 USC § 1343 is essentially similar to Penal Law §§ 156.30 and 156.35, unlawful duplication of computer related material and criminal possession of computer related material, respectively, both of which are class E felonies. We conclude that these statutes are not essentially similar for automatic disbarment purposes under Judiciary Law § 90 (4) (a) and (e). Nevertheless, respondent was convicted of a serious crime as defined in Judiciary Law § 90 (4) (d) and his interim suspension is required ( see Judiciary Law § 90 [f]).
In view of the above, we deny petitioner's motion, suspend respondent from the practice of law pursuant to Judiciary Law § 90 (4) (f) until such time as a final disciplinary order is made pursuant to Judiciary Law § 90 (4) (g), and direct respondent to show cause why a final order of suspension, censure or removal from office should not be made pursuant to Judiciary Law § 90 (4) (g) ( see e.g. Matter of Garcia, 52 AD3d 1017; Matter of Von Wiegen, 190 AD2d 905; Matter of Kagan, 184 AD2d 912).
Ordered that petitioner's motion is denied; and it is further ordered that respondent is suspended from the practice of law, effective immediately, until such time as a final disciplinary order is made pursuant to Judiciary Law § 90 (4) (g); and it is further ordered that respondent is directed to show cause before this Court, within 20 days of the date of this decision, why a final order of suspension, censure or removal from office should not be made pursuant to Judiciary Law § 90 (4) (g); and it is further ordered that, for the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of an-other; and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to an-other an opinion as to the law or its application, or any advice in relation thereto; and it is further ordered that respondent shall comply with the provisions of this Court's rules regulating the conduct of suspended attorneys ( see 22 NYCRR 806.9).