IN RE: John E. FASCIANA (admitted as John Edward Fasciana) (2006)

Respondent John E. Fasciana was admitted to the practice of law in the State of New York by the Second Judicial Department on October 23, 1974.   At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

On July 7, 2005, respondent was found guilty, after a jury trial in the United States District Court for the Southern District of New York, of one count of conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. §§ 371, 1341 and 1343, eight counts of mail fraud in violation of 18 U.S.C. § 1341, and three counts of wire fraud in violation of 18 U.S.C. § 1343.   While defendant was scheduled to be sentenced on these convictions on June 21, 2006, we have not been informed as to whether sentence has in fact been imposed.

The Departmental Disciplinary Committee now seeks an order determining that the crimes of which respondent has been convicted constitute “serious crimes” as defined in Judiciary Law § 90(4)(d) and 22 NYCRR 603.12(b) of this Court's Rules;  immediately suspending respondent from the practice of law pursuant to Judiciary Law § 90(4)(f);  and directing respondent to show cause why a final order of censure, suspension or disbarment should not be made (Judiciary Law § 90[4][g];  22 NYCRR 603.12[a] ).

 The offenses of which respondent has been convicted constitute “serious crimes” under Judiciary Law § 90(4)(d) and 22 NYCRR 603.12(b) (see e.g. In re Klein, 28 A.D.3d 102, 810 N.Y.S.2d 181 [2006];  see also Treffinger, 11 A.D.3d 185, 783 N.Y.S.2d 365 [2004], lv. denied 4 N.Y.3d 703, 790 N.Y.S.2d 649, 824 N.E.2d 50 [2005];  In re Lorenzo, 276 A.D.2d 223, 715 N.Y.S.2d 77 [2000] ), a point conceded by respondent.   While respondent requests that we refrain from suspending him “at least until” he is sentenced, Judiciary Law § 90(4)(f) provides that, upon receipt of a record indicating that an attorney has been convicted of a “serious crime,” this Court shall suspend the attorney until a final order is issued.   In addition, we have consistently held that suspension during the pendency of a “serious crime” proceeding pursuant to Judiciary Law § 90(4)(f) is appropriate for an attorney convicted of a federal felony (see e.g. In re Schechter, 308 A.D.2d 26, 762 N.Y.S.2d 370 [2003];  Matter of Woodward, 218 A.D.2d 65, 638 N.Y.S.2d 1 [1996];  Matter of Cooper, 181 A.D.2d 298, 586 N.Y.S.2d 250 [1992] ).

Accordingly, the petition to deem the crimes of which respondent has been convicted as serious crimes within the meaning of Judiciary Law § 90(4)(d) and 22 NYCRR 603.12(b), and to suspend respondent from the practice of law forthwith and until further order of this Court, should be granted and respondent directed, pursuant to Judiciary Law § 90(4)(g), to show cause, before a Referee appointed by the Court who shall thereupon hold a hearing within 90 days of respondent's sentencing, or release from prison if applicable, and issue a report and recommendation, why a final order of censure, suspension or disbarment should not be made.

Respondent suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court, as indicated.

PER CURIAM.

All concur.