Driving To Disbarment

A North Carolina conviction drew an automatic disbarment by the New York Appellate Division for the Second Judicial Department

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 NY2d 147, 150). In making the determination that a felony is essentially similar, this Court may consider other factors including the plea allocution and/or trial record (see Matter of Rosenfeld, 205 AD3d 147, 149; Matter of Anile, 205 AD3d 94, 95; Matter of Trimarco, 201 AD3d 139; Matter of Woghin, 64 AD3d 5).

During her plea, the respondent admitted that she agreed to drive her husband to facilitate his sale of five pills of oxycodone to someone who turned out to be a confidential informant involved in a controlled buy. The Grievance Committee asserts, inter alia, that the conduct underlying the respondent’s conviction of maintaining a vehicle (to sell or deliver a controlled substance), in violation of North Carolina General Statutes §90-108(a)(7) is essentially similar to the New York State felony of conspiracy in the fourth degree, in violation of Penal Law §105.10(1), a class E felony. The Grievance Committee asserts that the respondent’s husband’s conduct, sale of five oxycodone pills, satisfies the elements of criminal sale of a controlled substance in the third degree. The Grievance Committee asserts that by agreeing to and driving her husband to facilitate his sale of oxycodone, a controlled substance, the respondent’s conduct satisfies the elements of conspiracy in the fourth degree…

Under the circumstances of this case, we conclude that the criminal conduct underlying the respondent’s conviction of maintaining a vehicle (to sell or deliver a controlled substance), in violation of North Carolina General Statutes § 90 108(a)(7) is essentially similar to the New York felony of conspiracy in the fourth degree, in violation of Penal Law § 105.10(1), a class E felony. By virtue of her felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

(Mike Frisch)