In the Matter of Dmitry Shubov, an Attorney, Respondent. Departmental Disciplinary Committee for the First Judicial Department, Petitioner.
Supreme Court, Appellate Division, First Department, New York
October 20, 2005
802 N.Y.S.2d 437
APPEARANCES OF COUNSEL
Thomas J. Cahill, Chief Counsel, Departmental Disciplinary Committee, New York City (Raymond Vallejo of counsel), for petitioner.
OPINION OF THE COURT
Per Curiam.
Respondent Dmitry Shubov was admitted to the practice of law in the State of New York by the First Judicial Department on November 16, 1998. At all times relevant to these proceedings, respondent has maintained his principal place of business in San Francisco, California.
The Departmental Disciplinary Committee seeks an order striking respondent‘s name from the roll of attorneys pursuant to
Respondent cross-moves seeking an order that, among other things, denies petitioner‘s motion to disbar and finds that the New York counterpart to the federal crime to which he pleaded guilty is a misdemeanor, not a felony.
For purposes of the application of
Respondent was charged in an indictment filed in the United States District Court for the Central District of California with unlawful access to stored communications in violation of
On October 1, 2004, pursuant to a plea agreement, respondent pleaded guilty to count one of the indictment, namely, unlawful access to stored communications and aiding and abetting in violation of
There is no New York State felony counterpart to the federal felony of unlawful access to stored communications. Nevertheless, where the elements of an out-of-jurisdiction felony do not precisely correspond to the elements of a New York felony, this Court may look beyond the elements and consider admissions made in the plea allocution (see Matter of Mercado, 1 AD3d 54, 55-56 [2003]; Matter of Peiffer, 274 AD2d 158, 159 [2000]), which may also be read in conjunction with the indictment (Matter of Kaye, 217 AD2d 197, 198 [1995]).
During respondent‘s plea allocution the court noted that the parties stipulated that the plea agreement, which basically tracked the indictment, would be “considered part of the record of [the] guilty plea as if the entire agreement had been read into the record of the proceeding.” The court then reviewed on the record certain components of the plea agreement “[f]irst, that you intentionally accessed or caused the access of a facility through which an electronic communication service is provided; second, you did not have authorization to make such access; third, by such access you altered, caused the altering of, or obtained a wire or electronic communication in electronic storage; and, fourth, you committed such acts for the purpose of commercial advantage or private commercial gain.”
The court then summarized the following facts as stated in the plea agreement: respondent was the CEO and founder of a San Francisco-based company called Legalmatch.com, which is in the business of matching attorneys with clients and charging a fee for that service. Casepost, Inc., is a competitor of Legalmatch. On or about August 27, 2003, September 7, 2003, and September 30, 2003, respondent called Casepost‘s voice mail system, either from his cellular telephone or from a telephone at Legalmatch, for the purpose of obtaining commercial advantage over Casepost. He logged into Casepost‘s voice mail system and reviewed and deleted voice mails. In addition, on or about February 11, 2004, respondent falsely stated to the FBI that he had not accessed or deleted Casepost‘s voice mail. Respondent also acknowledged that he faced the prospect of having his law license revoked as a consequence of his guilty plea.
In order for a defendant to be guilty of unlawful access to stored communications (
The Committee argues that respondent‘s admissions at his plea allocution and pursuant to the plea agreement are sufficient to establish the elements of computer trespass (
“A person is guilty of computer trespass when he knowingly uses or causes to be used a computer or computer service without authorization and: 1. he does so with an intent to commit or attempt to commit or further the commission of any felony; or 2. he thereby knowingly gains access to computer material” (
As relevant herein, a person is guilty of computer tampering in the third degree when he commits the crime of computer tampering in the fourth degree (when a person uses or causes to be used a computer or computer service, without the right to alter or destroy a computer program or data, intentionally does so) and “3. he intentionally alters in any manner or destroys computer material” (
Respondent contends that neither the plea allocution nor the plea agreement contains facts which prove that the deleted voice mail was “computer material” because, according to respondent, it was personal in nature not business related. The plea agreement and respondent‘s allocution are silent as to the content of the deleted voice mail. Thus, he argues that “my
We note that respondent pleaded guilty to having accessed the voice mail without authorization and having altered the voice mail for the purpose of commercial advantage. When respondent was given the opportunity to comment on the court‘s recitation of facts at allocution, he stated that it was not complete, but was accurate, and he did not take the opportunity to elaborate. While the indictment and plea are silent with regard to the content of the voice mail respondent deleted, his plea allocution clearly creates the inference that the voice mail constituted “computer material.” Hence, we conclude that the plea set forth misconduct essentially similar to the aforementioned New York felonies and thereby warrants automatic disbarment (Matter of Margiotta, supra).
Accordingly, the Committee‘s petition should be granted and respondent‘s name stricken from the roll of attorneys pursuant to
ELLERIN, J.P., NARDELLI, WILLIAMS, GONZALEZ and SWEENY, JJ., concur.
Respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York nunc pro tunc to October 1, 2004.