Appellate Division: Second Judicial Department

M152660

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2009-11210 In the Matter of Raghubir K. Gupta, a disbarred attorney. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Raghubir A. Gupta, respondent. (Attorney Registration No. 1848456)

DECISION & ORDER ON MOTION

Motion by the respondent to vacate an opinion and order of this Court dated June 8, 2010, which struck his name from the roll of attorneys and counselors-at-law to reflect his automatic disbarment as of October 26, 2009, based on his felony conviction, and to reinstate him to the practice of law. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on January 25, 1983.

On April 7, 2008, the respondent was found guilty, after a jury trial, in the United Stated District Court for the Southern District of New York, before the Honorable Deborah Batts, of immigration fraud, in violation of 18 USC § 1546. On October 26, 2009, the court sentenced him to a period of incarceration of 51 months, and imposed a fine of $10,000 and three years of post-release supervision. By opinion and order of this Court dated June 8, 2010, the respondent's name was stricken from the roll of attorneys and counselors-at-law to reflect his automatic disbarment as of October 26, 2009, based on his felony conviction. In an amended opinion, dated November 8, 2012, the United States Court of Appeals for the Second Circuit vacated the respondent's conviction and remanded the case for further proceedings. The Second Circuit determined that the District Court violated the respondent's Sixth Amendment right to a public trial when the District Court intentionally and without justification closed the courtroom for the entirety of voir dire ( see United States v Gupta, 699 F3d 682).

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted to the extent that the opinion and order of this Court dated June 8, 2010, disbarring the respondent is vacated, and the motion is otherwise denied; and it is further,

ORDERED that on the Court's own motion, the respondent, Raghubir K. Gupta, is immediately suspended from the practice of law based on the acts of professional misconduct underlying the criminal allegations, continuing until further order of this Court; and it is further,

ORDERED that the respondent, Raghubir K. Gupta, shall continue to comply with this Court's rules governing the conduct of disbarred, suspended, and resigned attorneys (22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, the respondent, Raghubir K. Gupta, is commanded to continue to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that on the Court's own motion, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, as petitioner, against the respondent, Raghubir K. Gupta, based on the acts of professional misconduct underlying the criminal allegations and on any other charges of professional misconduct which may come to the Grievance Committee's attention; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel for the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Brooklyn, N.Y. 11201, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that the petitioner Grievance Committee shall serve upon the respondent, Raghubir K. Gupta, and the Special Referee and file with this Court a petition within 60 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that the respondent, Raghubir K. Gupta, shall serve an answer upon the petitioner and the Special Referee, and file the original answer with this Court within 20 days after service upon him of the petition; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to John P. Clarke, 35 Broad Street, Williston Park, N.Y. 11596, as Special Referee to hear and report, together with his findings on the issues, and to submit a report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

ENG, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court