In re Elias

OPINION OF THE COURT

Per Curiam.

The respondent was admitted to practice in this State on March 8, 1955, under the name of Francis Valentine Elias. In this proceeding to discipline him for professional misconduct, the petitioner and respondent, with the permission of this court, have entered into a stipulation, whereby respondent waived a hearing and consented to a determination, without such a hearing, based upon all the papers and documents before us. Prior thereto respondent moved to dismiss the proceeding.

On September 16, 1977, respondent was convicted in the United States District Court, Eastern District of New York, of the crime of willfully failing to make an income tax return. He was sentenced to one year in prison, execution of which was suspended, he was placed on probation for a period of three years and was fined $10,000.

After reviewing the evidence before us we find respondent to be guilty of the afore-mentioned misconduct. Accordingly, the petitioner’s application to discipline respondent is granted and respondent’s motion to dismiss the proceeding is denied.

In determining the measure of discipline to be imposed we have taken into consideration the fact that the sentencing Judge was sympathetic because there was, in his "mind a question here as to just how willful this failure was in the true sense.” Judge Platt went on to say, "I am not convinced, however, that he did it willfully in the criminal sense”. We are also mindful of certain personal problems that respondent was undergoing at the time of his misconduct. Accordingly, the respondent should be, and he is hereby, censured for his misconduct.

Mollen, P. J., Hopkins, Damiani, Titone and O’Connor, JJ., concur.