Opinion
March 20, 2000
Motion by the respondent for reconsideration and/or reargument of this court's opinion and order dated December 6, 1999, in the above-entitled proceeding, disbarring him and striking his name from the roll of attorneys and counselors-at-law, and upon reconsideration and/or reargument, vacating the order of disbarment and accepting his resignation. By opinion and order dated December 6, 1999, this court made a finding that the Federal conviction of conspiracy to commit mail fraud is essentially similar to the crime of commercial bribing in the first degree, pursuant to Penal Law § 180.03, a class E felony, and, in view of the automatic disbarment occasioned thereby, rejected the respondent's proffered resignation. The respondent was admitted to the practice of law at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 29, 1961.
Upon the papers filed in support of the motion and the papers filed in response thereto, it is
ORDERED that the respondent's motion is granted; and it is further,
ORDERED that, upon reconsideration, this court's opinion and order dated December 6, 1999, is recalled and vacated and the following opinion and order is substituted therefor:
Resignation tendered pursuant to 22 NYCRR 691.9 by Robert F. Malerba, who was admitted to the practice of law on March 29, 1961, at a term of the Appellate Division of the Supreme Court in the Second Judicial Department.
Grace D. Moran, Syosset, N.Y. (Nancy A. Bolger of counsel), for the Grievance Committee for the Tenth Judicial District.
Mischel, Neuman Horn, P.C., New York, N.Y. (Richard E. Mischel of counsel), and Sarah Diane McShea, New York, N.Y., for resignor.
GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, DAVID S. RITTER, DANIEL W. JOY, HOWARD MILLER, JJ.
OPINION ORDER
Robert F. Malerba has submitted an affidavit dated August 3, 1999, wherein he tenders his resignation as an attorney and counselor-at-law (see, 22 NYCRR 691.9).
On May 19, 1999, Mr. Malerba was sentenced before the Honorable Carol B. Amon in the United States District Court for the Eastern District of New York, on his plea of guilty to the charge of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, a Federal felony. The federal crime which the respondent was convicted of constitutes a serious crime within the meaning ofJudiciary Law § 90(4)(d) . The sentence imposed was three years probation, an $8,000 fine, and a mandatory assessment of $50. On these facts, the respondent has been convicted of a serious crime, as defined by Judiciary Law § 90(4)(d).
Mr. Malerba avers that his resignation is freely and voluntarily rendered, with an awareness of its implications and without having been subjected to coercion or duress. Mr. Malerba acknowledges that he could not successfully defend himself on the merits against any disciplinary charges predicated upon his conviction.
Mr. Malerba acknowledges that his resignation is submitted subject to any application which may be made by the Grievance Committee for an order, pursuant to Judiciary Law § 90(6-a), directing restitution or reimbursement to the Lawyers' Fund for Client Protection. He acknowledges the continuing jurisdiction of the Appellate Division to make such an order and waives the opportunity afforded by Judiciary Law § 90(6-a)(f) to be heard in opposition thereto.
The Grievance Committee urges acceptance of the proffered resignation.
Inasmuch as the proffered resignation comports with the requirements of the Judiciary Law and the Court Rules, it is accepted, the respondent is disbarred, effective immediately, and his name is stricken from the roll of attorneys and counselors-at-law.
MANGANO, P.J., O'BRIEN, RITTER, JOY and H. MILLER, JJ., concur.
ORDERED that the resignation of Robert F. Malerba is accepted and directed to be filed; and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, Robert F. Malerba is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
ORDERED that Robert F. Malerba shall comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see, 22 NYCRR 691.10); and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, Robert F. Malerba is commanded to desist and refrain (1) from practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law.