Per Curiam Respondent Timothy F. Cobb was admitted to the practice of law in the State of New York by the First Judicial Department on February 5, 1990, under the name Timothy Fitzgerald Cobb. Respondent’s registered address is in Georgia but this Court retains jurisdiction over him as the admitting Judicial Department (Rules for Attorney Disciplinary Matters [22 NYCRR 1240.7[a][2]]). On November 20, 2019, respondent was convicted, upon his plea of guilty, in the United States District Court for the Northern District of Georgia Atlanta Division, of wire fraud in violation of 18 USC § 1343 and filing a false and fraudulent tax return in violation of 26 USC § 7206(1). On August 19, 2021, respondent was sentenced to imprisonment for one year and one day followed by three years of supervised release and he was directed to make $488,000 in restitution in connection with his wire fraud conviction.[1] Respondent’s conviction stemmed from his ownership and operation of an entity through which he embezzled approximately $500,ooo in investor funds which were supposed to have been put towards the creation of a fantasy football lottery game with several state lotteries. In addition, respondent filed a false federal individual income tax return for the 2014 tax year in which he falsely stated that his adjusted gross income was $37,164 when he knew that it was substantially in excess of that amount as a result of the investment funds he embezzled. Respondent failed to report his conviction within 30 days thereof as required by Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a). Now, by motion, the Attorney Grievance Committee (AGC) seeks an order striking respondent’s name from the roll of attorneys, pursuant to Judiciary Law § 90(4)(a) and (b) and 22 NYCRR 1240.12(c)(1), on the ground that he was convicted of a felony as defined by Judiciary Law § 90(4)(e), namely, wire fraud in violation of 18 USC § 1343, and has therefore been automatically disbarred. By a May 17, 2022 unpublished order, Presiding Justice Acosta directed substitute service pursuant to Judiciary Law § 90(6), and, on May 20, 2022, the AGC served respondent with this motion by first class mail with tracking and certified mail return receipt requested at the federal correctional institute where he is incarcerated but he has not submitted a response. A conviction of a federal felony does not trigger automatic disbarment unless the federal felony at issue would constitute a felony in New York (Judiciary Law § 90[4][e]; Matter of Rosenthal, 64 AD3d 16, 18 [1st Dept 2009]). For a determination that a federal felony has a New York analog, the federal felony does not have to be a “mirror image” of a New York felony but must be “essentially similar” (Matter of Margiotta, 60 NY2d 147, 150 [1983]). Where the elements of the foreign felony do not directly correspond to the elements of the New York felony, “essential similarity” may be established by admissions made under oath during a plea allocution, read in conjunction with the indictment or information (see Matter of Adams, 114 AD3d 1, 2-3 [1st Dept 2013]; Matter of Lin, 110 AD3d 186 [1st Dept 2013]; Matter of Sorin, 47 AD3d 1 [1st Dept 2007]). Although this Court has previously determined that the federal felony of wire fraud has no direct felony analogue under New York law (see Matter of Klein, 28 AD3d 102 [1st Dept 2006]), the AGC argues that admissions made by respondent during his plea allocution, read in conjunction with the indictment to which he pleaded guilty, satisfy the elements of scheme to defraud in the first degree, a class E felony (Penal Law § 190.65[1][b]). We agree. Respondent was convicted of wire fraud under 18 USC § 1343, a felony, which provides: “[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both….”
The indictment to which respondent pleaded guilty alleged, in pertinent part: “[b]eginning in approximately 2014, [respondent] solicited investors for the stated purpose of helping [SB] create a fantasy football lottery game with . . . state lotteries. In late 2014, [respondent] began discussions with two investors who managed a joint business venture … On November 13, 2014, [SB], [respondent], and two investors entered into a Convertible Promissory Note Purchase Agreement … under which the investors provided two separate loans in the amounts of $100,000 and $400,000.
