Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David B. Saxe,Justice Presiding, David Friedman Rolando T. Acosta Leland G. DeGrasse Sheila Abdus-Salaam,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department.
Respondent, Jonathan S. Bristol, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on January 14, 1991.
Respondent Jonathan S. Bristol was admitted to the practice of law in the State of New York by the First Judicial Department on January 14, 1991.
On May 2, 2011, respondent pled guilty, in the United States District Court for the Southern District of New York, to conspiracy to commit money laundering (18 USC § 371; 18 USC §§ 1956[a][A][i], [B][i]), stemming from his allowing his client, former investment advisor Kenneth I. Starr, to use respondent's escrow accounts in furtherance of Starr's illegal use of investor funds, by wiring illegally-obtained funds into and out of those accounts. Based on that conviction, the Departmental Disciplinary Committee now moves pursuant to Judiciary Law § 90(4)(a) and (b) for an order striking respondent's name from the roll of attorneys, on the ground that the federal felony of which he was convicted would constitute a felony in this state and therefore warrants his automatic disbarrment; in the alternative, the Committee seeks an order holding that the federal felony constitutes a "serious crime" under Judiciary Law § 90(4)(d), and referring the matter for a sanction hearing. In addition, the Committee seeks a restitution order pursuant to Judiciary Law § 90(6-a).
In response to the motion, respondent has submitted his affidavit of resignation dated August 27, 2011. Accordingly, in a further submission, the Committee clarifies that it continues to seek respondent's automatic disbarrment under Judiciary Law § 90(4) on the ground that the federal felony of which he was convicted is essentially similar to a New York felony, which automatic disbarrment would render respondent's resignation moot. However, if, instead, this Court determines that the automatic disbarrment provision of Judiciary Law § 90(4)(e) does not apply to respondent's federal conviction, and that instead the federal felony must be deemed to constitute a serious crime as defined in Judiciary Law § 90(4)(d), the Committee seeks in the alternative that respondent's affidavit of resignation be accepted and respondent's name be stricken from the roll of attorneys as of the date the resignation was signed.
A conviction of a federal felony does not trigger automatic disbarrment, no matter how serious the felony, unless that federal felony would constitute a felony under the New York Penal Law (Judiciary Law § 90[e]; Matter of Rosenthal, 64 AD3d 16, 18 ).
This Court has previously held that when the language of New York's money laundering offense, Penal Law § 470.10, is compared to the federal money laundering statute, our State statute is too dissimilar to the federal offense of which respondent was convicted to permit automatic disbarrment under Judiciary Law § 90(4)(e) (see Matter of Stern, 205 AD2d 162, 163 ). While both the federal and the New York statute require that the defendant engage in financial transactions designed to conceal that funds were derived from criminal conduct, the New York statute requires that the defendant had the intent to conceal or disguise the source of the proceeds -- "a different mental state, with a more significant level of culpability" (id.).
Nevertheless, the Committee suggests that admissions made by respondent during his federal plea allocution establish that the federal conviction is analogous to the New York State felony of scheme to defraud in the first degree (Penal Law § 190.65), which applies where a defendant "engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises." We reject this contention.
The Committee relies on an admission by respondent that he knew that a substantial portion of the funds being wired by Starr were the proceeds of unlawful activity, and knew that allowing Starr to do so was illegal, and another more specific admission that he allowed Starr to transfer into the account $1 million stolen from a talent agency executive, and at Starr's direction respondent himself transferred the same amount from the account to the bank account of a certain actress. However, these statements fail to establish that respondent admitted acting with the intent to defraud Starr's investors. Scheme to defraud in the first degree, as defined by Penal Law § ...