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.
Decided on March 28, 2013
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Rolando T. Acosta,Justice Presiding, Dianne T. Renwick Leland G. DeGrasse Helen E. Freedman Rosalyn H. Richter,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Jonathan S. Dickstein, 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 September 18, 1995. Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Raymond Vallejo, of counsel), for petitioner. Sarah Diane McShea, Esq., for respondent. M-2652 July 30, 2012 IN THE MATTER OF JONATHAN S. DICKSTEIN, AN ATTORNEY
Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on September 18, 1995 as Jonathan Seth Dickstein. At all times relevant to this proceeding, respondent maintained an office for the practice of law within San Francisco, California.
On October 18, 2011, respondent pleaded guilty in the Superior Court of California, County of San Francisco, to 30 felony counts, including grand theft in violation of California Penal Code (CPC) § 487(a), attempted grand theft in violation of CPC 664 and 487(a), forgery in violation of CPC 470(d), presenting a false or fraudulent claim in violation of CPC 72, making fraudulent claims for health care benefits in violation of CPC 550(a)(6), and conspiracy to commit a crime in violation of CPC 182(a)(2).
Essentially, respondent and his wife created a phony company called Puzzle Pieces as a way to fraudulently bill for special education and related services for their autistic son. The couple used Puzzle Pieces to over bill and obtain multiple reimbursements for the same services provided to their son by submitting fraudulent claims to their school district, respondent's former law firm Morrison & Foerster LLP, and a health insurance company.
On November 15, 2011, respondent was sentenced to, inter alia, one year of incarceration followed by five years of probation. Respondent also entered into settlement agreements with the entities involved requiring him to make restitution of approximately $400,000. Respondent agreed not to contest any disbarrment proceedings and by order entered August 9, 2012, the Supreme Court of California disbarred respondent (Matter of Dickstein, 2012 Cal LEXIS 8293 [Cal 2012]).
The Departmental Disciplinary Committee now seeks an order, pursuant to Judiciary Law § 90(4)(b), striking respondent's name from the roll of attorneys based on his California convictions for, inter alia, grand theft in violation of CPC 487(a) and forgery. The Committee contends that the California felonies are analogous to the New York felonies of grand larceny in the fourth degree, in violation of Penal Law § 155.30(1), forgery in the second degree, in violation of Penal Law § 170.10(1), and offering a false instrument for filing in the first degree in violation of Penal Law § 175.35.
Respondent, through counsel, consents to his name being stricken from the rolls, pursuant to Judiciary Law § 90(4), based on his California convictions. Respondent's counsel notes there is a difference in the statutory definitions of grand theft, as defined by CPC 487(a), and grand larceny in the fourth degree, as defined by Penal Law § 155.30(1), in that the threshold amount under California law at that time was property valued at more than $400. In New York, the felony threshold amount is property valued at more than $1,000. Respondent's counsel concedes that for purposes of this proceeding, the difference in threshold values is "inconsequential" because the conduct that respondent pled guilty to involved the theft of property valued at more than $1,000.
Respondent was automatically disbarred upon his felony convictions pursuant to Judiciary Law § 90(4)(b). A conviction of an out-of-state felony triggers automatic disbarrment where the foreign felony at issue would constitute a felony under New York Penal Law (Judiciary Law § 90[e]; Matter of Rosenthal, 64 AD3d 16, 18 [1st Dept 2009]). For a determination that a foreign felony has a New York analogy, the foreign felony does not have to be a "mirror image" of a New York felony, but must be "essentially similar" (Matter of Margiotta, 60 NY2d 147, 150 ; Matter of Shubov, 25 AD3d 33 [1st Dept 2005]). This Court begins its determination by comparing the language of the applicable New York and foreign felony statutes, as well as an examination of its own precedent pertaining to the foreign felony at issue. If this initial analysis is inconclusive, "essential similarity" may be established by ...