In re Hug

10 A.D.3d 126, 781 N.Y.S.2d 16, 2004 N.Y. App. Div. LEXIS 10164
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 5, 2004
StatusPublished
Cited by6 cases

This text of 10 A.D.3d 126 (In re Hug) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hug, 10 A.D.3d 126, 781 N.Y.S.2d 16, 2004 N.Y. App. Div. LEXIS 10164 (N.Y. Ct. App. 2004).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent John T. Hug, Jr. was admitted to the practice of law in the State of New York by the Second Judicial Department on February 25, 1976. At all times relevant to the instant proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

On July 26, 2001, respondent pleaded guilty to an information filed in the United States District Court for the Eastern District of New York to conspiracy to defraud the United States (by making false statements) in violation of 18 USC § 371, which is a felony under the United States Code. The information alleges that respondent, as president of an ambulance company, submitted two applications to Medicare and Medicaid that falsely listed a Jose Davila as the owner of the company in question, knowing that Hugh Nastasi, a convicted felon who was officially excluded from participating in these programs, was the company’s owner, director and controller.

On July 29, 2003 respondent was sentenced to two years probation and ordered to pay a mandatory special assessment of $100. The court declined to order restitution in light of respondent’s adverse financial situation.

The Departmental Disciplinary Committee now petitions this Court for an order striking respondent’s name from the roll of attorneys pursuant to Judiciary Law § 90 (4) (a) or, in the alternative, for an order determining that the crime of which respondent has been convicted is a “serious crime” as defined by Judiciary Law § 90 (4) (d) and Rules of this Court (22 NYCRR) § 603.12 (b), immediately suspending respondent from the practice of law pursuant to Judiciary Law § 90 (4) (f), and directing respondent to show cause before a referee or Hearing Panel why a final order of censure, suspension or disbarment should not be made (Judiciary Law § 90 [4] [g]). Respondent cross moves for an order determining that the crime of which he has been convicted is a “serious crime” as defined by the Judiciary Law, and denying the Committee’s motion for an order of automatic disbarment.

We are persuaded that automatic disbarment is legally warranted and otherwise appropriate.

For purposes of the application of Judiciary Law § 90 (4) (a), which authorizes automatic disbarment of any attorney upon [128]*128conviction of a felony, Judiciary Law § 90 (4) (e) defines the term “felony” as “any criminal offense classified as a felony under the laws of this state or any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state.” For purposes of disbarment, “[t]he out-of-jurisdiction felony must be ‘essentially similar,’ but not necessarily identical to, an offense classified as a felony in New York” (Matter of Harnisch, 7 AD3d 58, 59 [2003]; see also Matter of Margiotta, 60 NY2d 147 [1983]).

There is no New York State felony counterpart to the federal felony of conspiracy to defraud the United States. Further, this Court has never ruled on the question of whether the federal crime of conspiracy to defraud the United States (18 USC § 371) is an analogue for the New York State felony of offering a false instrument for filing in the first degree (Penal Law § 175.35). However, under these specific and particular circumstances, we find these two crimes “essentially similar” for the purposes of directing an automatic disbarment. We reach this conclusion based on two factors: (1) respondent’s federal plea allocution is sufficient to establish all the elements of the state felony of first degree offering a false instrument for filing; and (2) the underlying acts which he admitted during his plea allocution to the federal felony clearly render him also guilty of the New York felony whose elements, though fewer in number, are more specific, and which fully and clearly fall within the meaning of the more general elements of the federal felony.

SUFFICIENCY OF THE PLEA

It is well settled that “where the elements of the out-of-jurisdiction felony do not directly correspond to the elements of a New York felony, this Court may look beyond the elements of the felony of which the respondent was convicted, and consider as well the respondent’s admissions in the plea allocution” (Matter of Harnisch, supra at 59; accord Matter of Mercado, 1 AD3d 54, 55-56 [2003]; Matter of Peiffer, 274 AD2d 158 [2000]; Matter of Kaye, 217 AD2d 197 [1995]). Here, respondent’s plea encompassed all the elements of the state felony of filing a false instrument.

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Bluebook (online)
10 A.D.3d 126, 781 N.Y.S.2d 16, 2004 N.Y. App. Div. LEXIS 10164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hug-nyappdiv-2004.