Former New York State Assembly Speaker Disbarred

Automatic disbarment for a federal felony conviction was imposed by the New York Appellate Division for the First Judicial Department of former New York Assembly Speaker Sheldon Silver

Respondent’s conviction was based on his receipt of nearly $4 million in payments from two law firms. Respondent received approximately $700,000 in payments from one firm, in exchange for invoking his official position to obtain recurring tax certiorari legal claims of two real estate developer clients with significant business before the New York State Legislature. Respondent also received approximately $3 million in payments through another law firm in exchange for using his official position to obtain names and identifying information of unrepresented patients with mesothelioma from a doctor, to whose research respondent secretly directed $500,000 in State funds and for whose benefit respondent engaged in other official acts. After obtaining the funds, respondent transferred the proceeds to various investment vehicles that he controlled.

The federal crime is essentially similar to a state felony

In Matter of Margiotta, (60 NY2d 147 [1983], supra), the Court of Appeals expressly held that a felony conviction for extortion under color of official right in violation of 18 USC §§ 1951 and 2 is essentially similar to the New York felony offense of larceny by extortion under Penal Law § 155.05(2). The Court determined that the absence of an express coercive element under that federal felony did not thwart a finding of essential similarity between that offense and the New York felony of larceny by extortion because the language “under color of official right” reflected the common law definition that extortion could only be committed by a public official, into which the element of threat or fear was implied. It was only when the crime of extortion was extended to apply to private citizens that “the element of threat or feat was made express” (id. at 152).

And why wait for the April 13 sentencing?

Although respondent concedes that the federal extortion counts of which he was convicted mandate disbarment under controlling case law, he asks that the matter be held in abeyance until the trial court issues decisions on his two pending post-conviction motions for a judgment of acquittal and for a new trial. We deny this request because a proceeding brought “pursuant to Judiciary Law § 90(4)(b) to strike his name from the roll of attorneys is a mere formality that serves only to record the fact of a disbarment that has already occurred” (Matter of Biaggi, 146 AD2d 148, 149 [1st Dept 1989]). That respondent has not exhausted the appeals process does not alter the fact that he ceased being an attorney by operation of law on the date of his conviction (Matter of Kozlow, 29 AD3d 44 [1st Dept 2006]).

(Mike Frisch)