State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 11, 2015 D-29-15 

___________________________________

In the Matter of ERIK MUELLER,

Also Known as ERIK W.

MUELLER, a Suspended DECISION AND ORDER

Attorney. ON MOTION

 

(Attorney Registration No. 3966025)

___________________________________

Calendar Date: May 11, 2015

Before: McCarthy, J.P., Lynch, Devine and Clark, JJ.

__________

Monica A. Duffy, Committee on Professional Standards,

Albany (Alison M. Coan of counsel), for Committee on Professional

Standards.

__________

Per Curiam.

Erik Mueller was admitted to practice by this Court in

2001. In October 2009, he was suspended from the practice of law

due to his failure to comply with the attorney registration

requirements (see Judiciary Law § 468-a; Matter of Attorneys in

Violation of Judiciary Law § 468-a, 65 AD3d 1447, 1469 [2009]). 

Mueller currently resides in New Jersey, where he was previously

admitted in 2000.

In 2011, Mueller pleaded guilty in the United States

District Court for the District of New Jersey to one count of

conspiracy to commit wire fraud in violation of 18 USC §§ 1343

and 1349. He was sentenced to, among other things, a five-month

period of incarceration. As a result of that conviction, the

Committee on Professional Standards now moves pursuant to

Judiciary Law § 90 (4) (a) and (b) for an order striking

Mueller's name from the roll of attorneys. Mueller has not
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replied or otherwise appeared in response to the motion. 

An attorney convicted of a federal felony found to be

essentially similar to a New York felony is automatically

disbarred (see Judiciary Law § 90 [4] [a], [e]; Matter of

Margiotta, 60 NY2d 147, 150 [1983]; Matter of Briggs, 115 AD3d

1149, 1150 [2014]). Conversely, an attorney convicted of a

federal felony without such a New York analogue is guilty of a

"serious crime" and shall be suspended by this Court until a

final disciplinary order is entered (Judiciary Law § 90 [4] [d],

[f]; see Matter of Johnston, 75 NY2d 403, 405 [1990]). 

The Committee contends that conspiracy to commit wire fraud

in violation of 18 USC §§ 1343 and 1349 is essentially similar to

Penal Law § 190.65 (1) (b), scheme to defraud in the first

degree, a class E felony. Upon our review, we conclude that the

federal felony to which Mueller pleaded (see 18 USC §§ 1343,

1349) is not essentially similar for automatic disbarment

purposes pursuant to Judiciary Law § 90 (4) (a) and (e). An

elemental comparison of the two crimes establishes that the

federal felony requires proof of additional facts that are not

required in order to be convicted for the New York crime of

scheme to defraud in the first degree. Moreover, while the First

Department has found said crimes to be "essentially similar" for

purposes of triggering automatic disbarment, said determinations

have not relied on a New York analogue but, rather, were based

upon review of the admissions that the respective attorneys made

under oath during their federal plea allocutions and in

conjunction with the subject federal indictment or information

(Matter of Weisman, 124 AD3d 52, 53 [2014] [internal quotation

marks and citation omitted]; accord Matter of Adams, 114 AD3d 1,

2-3 [2013]; Matter of Mercado, 1 AD3d 54, 55 [2003]). Given that

the record here does not contain the relevant plea allocution, we

need not decide whether to adopt this First Department test as

our own.

Consequently, we deny the Committee's motion. We

nonetheless conclude that Mueller has been convicted of a serious

crime within the meaning of Judiciary Law § 90 (4) (d). 

Accordingly, we suspend Mueller from the practice of law pursuant

to Judiciary Law § 90 (4) (f) until such time as a final
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disciplinary order is made pursuant to Judiciary Law § 90 (4)

(g), and further direct him to show cause why a final order of

suspension, censure or removal from office should not be made

(see e.g. Matter of Briggs, 115 AD3d 1149, 1151 [2014]; Matter of

Park, 95 AD3d 1648, 1649 [2012]; Matter of Erikson, 53 AD3d 772,

773 [2008]).

McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.

ORDERED that the motion of the Committee on Professional

Standards is denied; and it is further

ORDERED that Erik Mueller is suspended from the practice of

law, effective immediately, until such time as a final

disciplinary order is made pursuant to Judiciary Law § 90 (4)

(g); and it is further

ORDERED that Erik Mueller is directed to show cause before

this Court, within 20 days of the date of this decision, why a

final order of suspension, censure or removal from office should

not be made pursuant to Judiciary Law § 90 (4) (g); and it is

further

ORDERED that, for the period of suspension, Erik Mueller is

commanded to desist and refrain from the practice of law in any

form, either as principal or as agent, clerk or employee of

another; and Mueller is hereby forbidden to appear as an attorney

or counselor-at-law before any court, judge, justice, board,

commission or other public authority, or to give to another an

opinion as to the law or its application, or any advice in

relation thereto; and it is further
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ORDERED that Erik Mueller shall comply with the provisions

of this Court's rules regulating the conduct of suspended

attorneys (see Rules of App Div, 3d Dept [22 NYCRR] § 806.9).

ENTER:

Robert D. Mayberger

Clerk of the Court