Wednesday, July 7, 2010

"Essentially Similar"

An attorney's federal conviction for obstruction of justice was similar enough to a state criminal statute to warrant summary disbarment, according to a recent opinion of the New York Appellate Division for the First Judicial Department. The court explained:

A conviction of a federal felony does not trigger automatic disbarment unless the offense would constitute a felony under New York Penal Law. The federal felony need not be a "mirror image" of the New York felony, but it must be essentially similar. Here, respondent's federal conviction of obstruction of justice in violation of 18 USC § 1512(c) is essentially similar to the New York felony of tampering with physical evidence. Accordingly, the Committee's petition to strike respondent's name from the roll of attorneys is granted.

Respondent's conviction for obstruction of justice in violation of 18 USC § 1512 (c) is a proper predicate for disbarment because there is "essential similarity" between that federal statute and the New York felony of tampering with physical evidence.

While these statutes are not "mirror images," they are essentially similar. The only significant difference is the element of force or intimidation with respect to another person in Penal Law § 215.40(2), but that language is framed in the alternative and does not necessarily apply in every proceeding.

Respondent's indictment, inter alia, contained the following language: [Respondent], together with others, did knowingly, intentionally and corruptly alter, destroy, mutilate and conceal records, documents, and other objects, and attempt to do so, with the intent to impair their integrity and availability for use in an official proceeding, to wit: a Federal Grand Jury Investigation in the Eastern District of New York

* * *

30. Between November 2005 and April 2007, a duly empaneled Grand Jury in the Eastern District of New York was [] investigating Fraudulent Scheme #2. On or about January 12, 2006, the defendant Steven Coren was informed by [Cooperating Witness-3] that Corporation-3 was under investigation by a law enforcement agency and that law enforcement officials had obtained certified payrolls submitted by Corporation-3 for work it performed as a subcontractor on various state and federal projects.
31. On or about and between January 13, 2006 and February 3, 2006, the defendant...advised [Cooperating Witness-3] and [Cooperating Witness-4] to conceal and destroy records, documents and other objects relating to the transfer of CBT funds to labor union benefit funds.

Respondent's plea allocution with respect to this charge was
as follows:

[R]egarding the count in the indictment charging obstruction of justice, I admit that on February 3, 2006, I advised Nomi Beig [his client] in response to a question he posed to me that he should destroy a computer flash drive containing documents that I advised him to remove from his office when I heard that his company was under investigation. I knew that by doing so Nomi would be destroying documents that could have been used in a Government investigation.

The above allocution, taken in conjunction with the indictment, demonstrates the "essential similarity" between the federal and state statutes. Assuming Beig was a cooperating witness, respondent could be found guilty only of attempted, rather than actual, evidence tampering. While 18 USC § 1512(c) specifically includes "attempt" language, Penal Law § 215.40 does not. Furthermore, under Penal Law § 110.05(6), an attempt to commit a crime under Penal Law § 215.40 would only be a class A misdemeanor. Moreover, respondent's allocution only refers to his directing someone else to destroy evidence, rather than respondent himself. However, respondent was specifically charged in the indictment, and ultimately convicted for, actual evidence tampering, not attempted evidence tampering. Thus, under these circumstances the conviction under this charge is sufficient to strike respondent from the roll of attorneys. (citation omitted)

(Mike Frisch)

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