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In re Duval

Supreme Court of New York, Second Department

January 25, 2017

In the Matter of Wally Duval, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Wally Duval, respondent. (Attorney Registration No. 2158111)

         MOTION by the Grievance Committee for the Tenth Judicial District to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b), based upon her conviction of a felony. The respondent was admitted to the Bar at a term of the Supreme Court in the Appellate Division, Second Judicial Department, on June 1, 1988.

          Mitchell T. Borkowsky, Hauppauge, NY (Ian P. Barry of counsel), for petitioner.

          RANDALL T. ENG, P.J. REINALDO E. RIVERA MARK C. DILLON RUTH C. BALKIN JOHN M. LEVENTHAL, JJ.

          OPINION & ORDER

          PER CURIAM.

         On September 26, 2014, the respondent pleaded guilty in the United States District Court, Southern District of New York, to conspiracy to commit bank fraud, in violation of 18 USC § 1349. The respondent was sentenced on January 7, 2015, to 20 months' imprisonment, followed by five years of supervised release. In addition, she was ordered to pay an assessment in the amount of $100, and restitution in the sum of $718, 800.56, to be paid in monthly installments upon her release from prison.

         There is no record of the respondent advising this Court of her conviction, as required by Judiciary Law § 90(4)(c).

         The Grievance Committee for the Tenth Judicial District now moves to strike the respondent's name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(b) based upon her conviction of a felony. The respondent has taken no position with respect to the motion of the Grievance Committee.

         Pursuant to Judiciary Law § 90(4)(a), "[a]ny person being an attorney and counsellor-at-law who shall be convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law." Judiciary Law § 90(4)(e) provides that

"[f]or purposes of this subdivision, the term felony shall mean 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."

         A felony committed in another jurisdiction need not be a mirror image of a New York felony, but it must have "essential similarity" (Matter of Margiotta, 60 N.Y.2d 147, 150). In determining whether a federal felony is essentially similar to a New York felony, this Court may consider the attorney's plea allocution (see Matter of Woghin, 64 A.D.3d 5).

         The Grievance Committee asserts that the respondent's conviction of conspiracy to commit bank fraud, in violation of 18 USC § 1349, is essentially similar to the New York felony of scheme to defraud in the first degree (Penal Law § 190.65; see Matter of Kim, 209 A.D.2d 127). Pursuant to Penal Law § 190.65, a person is guilty of scheme to defraud in the first degree, a class E felony, by engaging in a scheme with intent to defraud one or more persons by false pretenses, thereby obtaining property in excess of $1, 000. During the respondent's plea alloucution, she admitted that she agreed with others to commit bank fraud by facilitating the submission of loan applications to banks, which applications she knew were fraudulent. She further agreed to forfeit the sum of $1, 104, 000, the proceeds of the offense.

         Under the circumstances of this case, we conclude that the respondent's conviction of conspiracy to commit bank fraud, in violation of 18 USC § 1349, constitutes a felony within the meaning of Judiciary Law § 90(4)(e). As such, upon her conviction of that crime, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

         Accordingly, the unopposed motion to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b), is granted to reflect ...


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