Friday, November 6, 2009

No Automatic Disbarment For Immigration Fraud

The New York Appellate Division for the First Judicial Department rejected the contention that a lawyer's conviction in federal court for conspiracy to commit immigration fraud should result in automatic disbarment. The court suspended the lawyer on an interim basis as a result of the conviction for a "serious crime" while disciplinary proceedings are conducted. The court held that there was no New York analogue to the federal offense:

Respondent cannot be stricken immediately from the roll pursuant to Judiciary Law § 90(4)(b) because respondent's conviction of the federal felony of conspiracy to commit immigration fraud did not automatically disbar him. Conviction of a federal felony only triggers disbarment by operation of law if the offense would constitute a felony under the New York Penal Law (Judiciary Law § 90[4][e]; Matter of Rosenthal, 64 AD3d 16, 18 [2009]). The federal felony need not be a "mirror image" of a New York felony, but it must be essentially similar (Matter of Margiotta, 60 NY2d 147, 150 [1983]).

The Committee contends that respondent was automatically disbarred because respondent's offense, if committed in New York, would constitute the felony of offering a false instrument for filing in the first degree in violation of New York Penal Law § 175.35. However, as this Court has previously held, the crime of conspiracy to commit immigration fraud has no analogue in the New York Penal Law (Matter of Markovitch, 191 AD2d 116, 117 [1993]). The Committee cites to inapposite precedent where the respondents were convicted of the separate offense of immigration fraud in violation of 18 USC § 1546, whose elements were found to be analogous to those of offering a false instrument for filing in the first degree (see Matter of Ramirez, 7 AD3d 52, 53 [2004]; Matter of Salberg, 276 AD2d 19, 20 [2000]; Matter of Monte, 94 AD2d 275, 276-277 [1983]).

The Committee also contends that the factual allegations in the respondent's indictment establish that the offense was essentially similar to the New York crime in question. Although the essential similarity of a federal and New York felony can be established from a respondent's sworn admissions during the plea allocution, in conjunction with the federal indictment or information (see Matter of Sorin, 47 AD3d 1, 3 [2007][citing cases]), in this case respondent was convicted after a trial by jury and there was no allocution. The Committee mistakenly cites Matter of Amsterdam (26 AD3d 94 [2005]) for the proposition that the indictment alone can establish essential similarity, but the respondent in Amsterdam both pleaded guilty and made admissions during the allocution which persuaded this Court that the federal offense in question had an analogue in New York law (Id. at 96-97; see also Matter of Kim, 209 AD2d 127, 130 [1995] [distinguishing between allegations in indictment and admissions in the allocution during a guilty plea]).

(Mike Frisch)

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