Opinion
April 15, 1993
Rosemary F. Palladino of counsel (Hal R. Lieberman, attorney), for petitioner.
No appearance on behalf of respondent.
Respondent Ross Spencer Frankel was admitted to the practice of law by the First Judicial Department on January 17, 1983.
On April 28, 1992, in connection with his involvement with an insider trading scheme, respondent was convicted, after trial, in the United States District Court for the Southern District of New York of conspiracy, in violation of 18 U.S.C. § 371; securities fraud, in violation of 15 U.S.C. § 78j (b) and § 78ff; mail fraud, in violation of 18 U.S.C. § 1341; perjury, in violation of 18 U.S.C. § 1621 and two counts of obstruction of justice, in violation of 18 U.S.C. § 1505, and was sentenced to 18 months on each count, to run concurrently. Respondent was also fined $5,000 on the perjury count and on one of the obstruction of justice counts, and assessed $50 on each of the six counts.
Based on respondent's conviction for the Federal felony of perjury, petitioner Departmental Disciplinary Committee seeks an order striking his name from the roll of attorneys pursuant to Judiciary Law § 90 (4) (b), upon the ground that respondent has been automatically disbarred upon his conviction of a felony as defined by Judiciary Law § 90 (4) (e). While petitioner, citing Matter of Sherr ( 93 A.D.2d 686) and Matter of Mitchell ( 48 A.D.2d 410, affd 40 N.Y.2d 153), claims that perjury in the second degree (Penal Law § 210.10) is "essentially similar" to 18 U.S.C. § 1621, thereby calling for an automatic disbarment of respondent, Penal Law § 210.10 applies only to false written statements, and in this instance respondent was convicted of giving false oral testimony ( 18 U.S.C. § 1621). Penal Law § 210.15, perjury in the first degree, a class D felony, however, applies to a false statement which "consists of testimony". This crime, which more accurately describes respondent's misconduct, is "essentially similar" to 18 U.S.C. § 1621 (1). Therefore, the crime of which respondent was convicted is a felony under New York law.
Accordingly, petitioner's motion should be granted and his name should be stricken from the roll of attorneys, pursuant to Judiciary Law § 90 (4) (b), forthwith.
SULLIVAN, J.P., MILONAS, ROSENBERGER, WALLACH and Ross, JJ., concur.
Petition granted and respondent's name directed to be struck from the roll of attorneys and counselors-at-law in the State of New York, effective April 15, 1993.