Lulkin, In re

• Decision Date: 22 June 1999
• Citation: 258 A.D.2d 209,692 N.Y.S.2d 338
• Parties: In the Matter of Michael A. LULKIN (admitted as Michael Allan Lulkin), an attorney and counselor-at-law. Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Michael A. Lulkin, Esq., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 338

692 N.Y.S.2d 338

In the Matter of Michael A. LULKIN (admitted as Michael Allan Lulkin), an attorney and counselor-at-law Departmental Disciplinary Committee for the First Judicial Department, Petitioner Michael A. Lulkin, Esq., Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 22, 1999.

Richard M. Maltz, of counsel (Thomas J. Cahill, Chief Counsel) for petitioner.

Frederick P. Hafetz and Susan R. Necheles, of counsel (Goldman & Hafetz, attorneys) for respondent.

ERNST H. ROSENBERGER, Justice Presiding, ANGELA M. MAZZARELLI, ISRAEL RUBIN, RICHARD T. ANDRIAS and JOHN T. BUCKLEY, Justices.

PER CURIAM.

Respondent Michael A. Lulkin was admitted to the practice of law in the State of New York by the Second Judicial Department on March 28, 1979 as Michael Allan Lulkin. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

On July 7, 1998, respondent pleaded guilty to four Federal felony counts in the United States District Court for the Southern District of New York. He was convicted of two counts of conspiring to commit securities fraud, mail fraud and wire fraud in violation of 18 USC § 371; one count of conspiring to launder money in violation of 18 USC § 1956(h); and one count of mail fraud in violation of 18 USC § 1341.

The Departmental Disciplinary Committee now seeks an order striking respondent's name from the roll of attorneys pursuant to Judiciary Law § 90(4)(b). Respondent contends that since the Federal felonies in question have no New York felony equivalents (Matter of Greenberg, 187 A.D.2d 12, 593 N.Y.S.2d 185; Matter of Milchman, 74 A.D.2d 92, 426 N.Y.S.2d 777), automatic disbarment under Judiciary Law § 90(4)(a) is not appropriate. Instead, he claims, his convictions should be deemed "serious crimes" under Judiciary Law § 90(4)(d) and this court should order a hearing on the appropriate sanction. However, the Committee correctly argues that his plea allocution contains admissions necessary to satisfy the elements of Penal Law § 180.08 (commercial bribe receiving in the first degree) and § 190.65 (scheme to defraud in the first degree), both Class E felonies. Even if the statutory language defining the Federal felony is not essentially similar to a New York felony, respondent will be deemed guilty of a felony as defined in Judiciary Law § 90(4)(e) if the criminal conduct admitted to in the Federal plea allocution satisfies the elements of a New York felony (Matter of Kaye, 217 A.D.2d 197, 634 N.Y.S.2d 118).

A person is guilty of first-degree commercial bribe receiving where, without his employer's consent, he agrees to accept a benefit exceeding $1,000 from a third party in exchange for influencing the employer's conduct, and thereby causes the employer to suffer loss exceeding $250. In respondent's plea to count four, mail fraud, he admitted that he took part in a kickback scheme, in which he created falsely inflated invoices from vendors who dealt with his employer PDK Labs. After PDK Labs paid the inflated price to the vendor, the vendor kicked back the difference to respondent. This scheme went on from 1996 to 1998 and netted respondent illegal profits of $195,000. Respondent's fraudulent scheme satisfies the elements of Penal Law § 180.08, a New York felony, which by itself would be sufficient to justify granting the Committee's motion. There is no merit to respondent's defense that he was not the organizer of the scheme, as this is not a required element of the crime (People v. Reynolds, 174 Misc.2d 812, 667 N.Y.S.2d 591).

Were any further rationale needed, respondent's plea allocution to the other three counts also satisfies the elements of first-degree scheme to defraud under Penal Law § 190.65(1)(b). A person is guilty of this felony where he engages in a systematic ongoing course of conduct to obtain property from more than one...