| Matter of Bennett |
| 2016 NY Slip Op 04319 |
| Decided on June 2, 2016 |
| Appellate Division, First Department |
| Per Curiam |
| 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 June 2, 2016 SUPREME COURT, APPELLATE DIVISION First Judicial Department
Peter Tom,Justice Presiding,
John W. Sweeny, Jr.
Richard T. Andrias
Sallie Manzanet-Daniels
Troy K. Webber, Justices.
M-1450
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Charles E. Bennett, 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 June 2, 1986.
Jorge Dopico, Chief Counsel, Departmental
Disciplinary Committee, New York
(Raymond Vallejo, of counsel), for petitioner.
Respondent pro se.
Per Curiam
Respondent Charles A. Bennett was admitted to the practice of law in the State of New York by the First Judicial Department on June 2, 1986. Although respondent currently resides in Minnesota, for most of the time relevant hereto he maintained a registered address within the First Judicial Department.
On October 28, 2015, respondent pleaded guilty in the United States District Court for the Southern District of New York to securities fraud in violation of 15 USC §§ 78j(b) and 78ff, 17 CFR § 240.10b-5 and 18 USC § 2, and wire fraud in violation of 18 USC §§ 1343 and 2, both [*2]felonies. On May 19, 2016, respondent was sentenced to, inter alia, five years in prison and three years of supervised release.
Respondent's conviction stems from a Ponzi scheme by which, between 2008 and 2014, he solicited approximately $10 million from more than 30 investors under false pretenses. Respondent misappropriated the investor funds and converted them to his own use and use by others, including using the funds to meet the periodic redemption requests of other investors.
To effectuate this fraudulent scheme, respondent, inter alia, created fake and misleading documents that he sent to investors, including fraudulent account statements. In or about 2014, his scheme began to unravel when several investors contacted him about redeeming their investments. In November 2014, in connection with a failed suicide attempt, respondent authored a handwritten note in which he admitted to perpetrating the Ponzi scheme.
Respondent was indicted in January 2015. At his plea allocution, he testified that to obtain money, he solicited investments from his family and friends by falsely representing to them that the money would be invested in a private investment fund that purchased and sold securities, when he knew the investments were not being made and were not going to be made. Respondent also testified that he perpetuated the fraud, in part, through emails, telephone calls and wire transfers.
The Departmental Disciplinary Committee (Committee) now seeks an order striking respondent's name from the roll of attorneys under Judiciary Law § 90(4)(b) upon the ground that he was automatically disbarred as a result of his conviction of a federal felony that would constitute a felony if committed under New York law (Judiciary Law § 90(4)(e); Matter of Kluger, 102 AD3d 168 [1st Dept 2013]; Matter of Rosenthal, 64 AD3d 16 [1st Dept 2009]). Respondent was served with the petition and has not submitted a response.
For purposes of the application of Judiciary Law § 90(4)(a), which authorizes automatic disbarment of any attorney upon conviction 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." The out-of-jurisdiction felony must be "essentially similar," but not necessarily identical to, an offense classified as a felony in New York (Matter of Margiotta, 60 NY2d 147, 150 [1983]).
Respondent's federal conviction for securities fraud (15 USC §§ 78j(b) and 78ff, 17 CFR § 240.10b-5) is "essentially similar" to the New York felony of insider trading under General Business Law § 352-c(5) and (6). Violation of either one of these sections of the General Business Law constitutes a felony and, therefore, automatic disbarment is proper (see Matter of Kluger, 102 AD3d at 170; Matter of Cutillo, 86 AD3d 1 [1st Dept 2011]; Matter of Marks, 4 AD3d 11 [1st Dept 2004]).
Accordingly, the Committee's petition should be granted and respondent's name stricken from the roll of attorneys and counselors-at-law in the State of New York pursuant to Judiciary Law § 90(4)(b) effective nunc pro tunc to October 28, 2015.
All concur.
Order filed. [June 2, 2016]
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, and Webber, JJ.
Tom, J.P., Renwick, Richter, Kapnick, Webber, JJ.
M-1399 In the Matter of Williams v City of New York
Appeal dismissed.
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, Webber, JJ.
M-1871 Rios v 750 Astor, LLC; 750 Astor, LLC v Jewish Board of
M-2053 Family and Children's Services, Inc.
Appeal dismissed.
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-2199 (DC #51) Joseph v Premiere Eglisse Baptiste Haitienne De Manhattan
Upon the Court's own motion, appeal dismissed.
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-2712 (DC #31) Zdunek v Everest Scaffolding Inc. — Sundaresan
Upon the Court's own motion, appeal dismissed.
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, Webber, JJ.
M-1484 In the Matter of Rivera v New York City Housing Authority
Proceeding dismissed.
Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels, Gesmer, JJ.
M-2451 People v Reid, Saif
Leave to prosecute appeal as a poor person granted, as indicated.
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-2096 In the Matter of J., Cassius v F., Linday
Leave to prosecute appeal as a poor person granted, as indicated.
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-2098 In the Matter of J., Izrael — Administration for Children's Services
Leave to prosecute appeal as a poor person granted, as indicated.
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-1875 In the Matter of T., Diane v N., Shawn
Leave to prosecute appeal as a poor person granted, as indicated. (See M-1646, M-1658 and M-2056, decided simultaneously herewith.)
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-1646 In the Matter of T., Diane v N., Shawn
Leave to respond to appeal as a poor person granted, as indicated. (See M-1658, M-1875 and M-2056, decided simultaneously herewith.)
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-1658 In the Matter of T., Diane v N., Shawn
Leave to respond to appeal as a poor person granted, as indicated. (See M-1646, M-1875 and M-2056, decided simultaneously herewith.)
Tom, J.P., Mazzarelli, Friedman, Sweeny, Acosta, JJ.
M-2056 In the Matter of T., Diane v N., Shawn
Leave to respond to appeal as a poor person granted, as indicated. (See M-1646, M-1875 and M-1658, decided simultaneously herewith.)
Tom, J.P., Saxe, Richter, Gische, Webber, JJ.
M-1776 People v Figueroa, Angel
Leave to prosecute appeal as a poor person denied, with leave to renew, as indicated.
Tom, J.P., Saxe, Richter, Gische, Webber, JJ.
M-2150 Pettus v Jankowski — Thompson
Leave to prosecute appeal as a poor person and other relief denied.
Tom, J.P., Saxe, Richter, Gische, Webber JJ.
M-1967 People v Penn III, Lawrence E.,
Moving papers deemed a timely filed notice of appeal.
Tom, J.P., Renwick, Richter, Kapnick, Webber, JJ.
M-1622 People v Castro-Pena, Rafael
Enlargement of time to file notice of appeal and related relief denied.
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, Webber, JJ.
M-1640 Epstein Becker & Green, P.C. v Vortex Group, Inc. — Danica Group, LLC
Time to perfect appeal enlarged to the October 2016 Term.
Tom, J.P., Saxe, Richter, Gische, Webber, JJ.
M-1820 Metro Foundation Contractors, Inc. v Marco Martelli Associates, Inc.
Time to perfect appeals enlarged to the October 2016 Term.
Tom, J.P., Renwick, Richter, Kapnick, Webber, JJ.
M-1465 Aspen Specialty Insurance Company v Ironshore Indemnity Incorporated
Stay denied.
Tom, J.P., Acosta, Renwick, Moskowitz, JJ.
M-922 East Fordham DE LLC v U.S. Bank National Association
Leave to file sur-reply to defendants-appellants' pleadings denied.
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, Webber, JJ.
M-1883 People v Reyes, Wendell
Motion deemed application to submit handwritten pro se supplemental brief, and said pro se supplemental brief annexed to the moving papers deemed filed for the October 2016 Term, to which Term appeal adjourned; motion otherwise denied.
Tom, J.P., Friedman, Sweeny, Renwick, Andrias, JJ.
M-1731 Swiss Re Financial Services Corp. v McGuirk
Leave to appeal to the Court of Appeals from this Court's order entered February 11, 2016 (M-6275) and other relief denied.
Tom, J.P., Renwick, Saxe, Kapnick, JJ.
M-532 Andino v Mills
M-628 (And a third-party action)
Reargument denied; leave to appeal to the Court of Appeals granted, as indicated.
Mazzarelli, J.P., Friedman, Andrias, Moskowitz, Kahn, JJ.
M-1650 US Bank National Association v Ferguson
— Campbell-Edwards — Edwards
Enlargement of time to perfect appeal denied; appeal from January 7, 2015 order dismissed, as indicated.
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.
M-1916 People v Williams, Jomo
Leave to prosecute appeal as a poor person granted, as indicated.
Mazzarelli, J.P., Saxe, Gische, Kahn, JJ.
M-1911 People v Lynah, Elijah
Moving papers deemed a timely filed notice of appeal; motion otherwise denied.
Mazzarelli, J.P., Renwick, Saxe, Gische, Kahn, JJ.
M-1807 Berman v Saunders
Time to perfect appeal enlarged to the October 2016 Term.
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.
M-2039 Turner v The City of New York
Time to perfect appeal enlarged to the October 2016 Term, as indicated.
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.
M-2086 Perina v Animal Care and Control of New York City, Inc.
Time to perfect appeal enlarged to the November 2016 Term.
Mazzarelli, J.P., Renwick, Saxe, Gische, Kahn, JJ.
M-1682 Pratts v Campolo
Time to perfect appeal enlarged to the November 2016 Term.
Mazzarelli, J.P., Acosta, Andrias, Moskowitz, JJ.
M-788 Credit Agricole Corporate v BDC Finance, LLC
Reargument or other relief denied.
Mazzarelli, J.P., Friedman, Sweeny, Manzanet-Daniels, JJ.
M-1522 The City of New York v Granite State Insurance Company
Reargument or other relief denied.
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.
M-1900 People v Rivera, Michael
Leave to be provided with free transcripts of proceedings for use in preparing a certificate seeking leave to appeal from this Court's October 21, 2014 decision and order and other relief denied.
Mazzarelli, J.P., Manzanet-Daniels, Kapnick, Webber, JJ.
M-1806 Wittels v Sanford
M-1851
Leave to appeal to the Court of Appeals denied
(M-1806); Stay granted only to the extent authorized by CPLR 5519(e).
Friedman, J.P., Acosta, Moskowitz, Kapnick, Gesmer, JJ.
M-1763 People v Sims, Robert
Moving papers deemed a timely filed notice of appeal; leave to prosecute appeal as a poor person denied, with leave to renew, as indicated.
Friedman, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.
M-2071 Coaker v Mulet
Defendants-respondents permitted to file nine copies of of Exhibit A as a supplemental record, immediately.
Friedman, J.P., Acosta, Andrias, Saxe, Feinman, JJ.
M-1410 Frassinelli v 120 East 73rd Street Corp.
(And other actions)
Reargument or other relief denied.
Sweeny, J.P., Saxe, Moskowitz, Gische, Webber, JJ.
M-1354 Lawson v Chaims
M-1505
Appeal dismissed.
Sweeny, J.P., Acosta, Manzanet-Daniels, Gische, Gesmer, JJ.
M-4303 Kalish v Hudson River Park Trust; Hudson River Park Trust v The Port Authority of New York and New Jersey
Appeal taken by plaintiff dismissed; appeal taken by defendant-respondent/third-party plaintiff-respondent-appellant deemed withdrawn.
Sweeny, J.P., Acosta, Manzanet-Daniels, Gische, Gesmer, JJ.
M-1830 In the Matter of Thompson v New York State Division of
M-1942 Human Rights
Appeal dismissed (M-1942); leave to prosecute appeal as a poor person denied, as indicated (M-1830).
Sweeny, J.P., Renwick, Andrias, Kapnick, Kahn, JJ.
M-1931 People v Alvarez, Anthony
Leave to file pro se supplemental brief granted for the October 2016 Term, to which Term appeal adjourned, as indicated.
Sweeny, J.P., Andrias, Kapnick, Kahn, JJ.
M-1687 People v Roundtree, Stacey
Defendant directed to file notice of appeal from order of Supreme Court, Bronx County, entered on or about October 27, 2015, and from the judgment of resentence rendered on or about December 8, 2015, as indicated.
M-2135 People v Degraffenreid, Brian
Leave to appeal to the Court of Appeals granted, as indicated.
M-1821 People v Simmons, Jeremy
Bail or other relief denied.
Mazzarelli, J.P., Friedman, Sweeny, Andrias, Saxe, JJ.
M-1214 In the Matter of John E. Fasciana
(admitted as John Edward Fasciana),
a disbarred attorney:
Petition referred to a Hearing Panel to conduct a hearing, as indicated. No opinion. All concur.
2016:
Mazzarelli, J.P., Acosta, Saxe, Kapnick, Kahn, JJ.
M-2586 Guidance Enhanced Green Terrain, LLC v Bank of America Merrill Lynch, also known as Merrill Lynch, Pierce, Fenner & Smith, Inc.
Leave to strike plaintiff-appellant's reply brief denied.