Respondent Harvey K. Newkirk was admitted to the practice of law in the State of New York by the First Judicial Department on February 3, 2003, under the name Harvey Kenyatta Newkirk. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Department.

On December 14, 2015, respondent was convicted, after a jury trial, in the United States District Court for the Southern District of New York, of wire fraud in violation of 18 USC §§ 2 and 1343, a felony. Respondent was sentenced to six months incarceration, three years of supervised release following his release from prison, and directed to pay $3.1 million in restitution. Respondent's conviction stemmed from his client's effort to purchase Maxim Magazine. Respondent induced two lenders to loan his client approximately $8 million to finance the purchase of Maxim by making misrepresentations, including that his client's father, a successful businessman with significant assets, whom respondent falsely claimed to represent, would pledge certain personal assets as collateral for the loans. In fact, the father never agreed to provide financial backing for the acquisition, nor did he authorize respondent to represent him.

By order entered January 24, 2017, this Court granted a motion by the Attorney Grievance Committee (the Committee), seeking a determination that the crime of which respondent was convicted is a "serious crime" as defined by Judiciary Law § 90 (4) (d) and 22 NYCRR 603.12 (b); immediately suspending respondent from the practice of law pursuant to Judiciary Law § 90 (4) (f); and, pursuant to Judiciary Law § 90 (4) (g), directing respondent to show cause before a hearing panel or a referee, within 90 days of his sentencing or release from incarceration, if applicable, why a final order of censure, suspension or disbarment should not be made (2017 NY Slip Op 63023[U] [1st Dept 2017]).

Respondent now seeks an order, pursuant to Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.10, approving {**159 AD3d at 186}his resignation and disbarring him from the practice of law. In support of his application, respondent submits an affidavit in which he acknowledges that he is currently the subject of a "serious crime" proceeding pursuant to this Court's January 24, 2017 order, and identifies Open Gate Capital, a California entity, as the victim of his fraudulent conduct in the amount of $3.1 million. Respondent further attests that he cannot successfully defend himself against allegations of professional misconduct based upon his conviction, and that he submits his resignation freely and voluntarily, without coercion or duress, and with full awareness of the consequences, including that the Court's acceptance and approval shall result in the entry of an order of disbarment striking his name from the roll of attorneys.

In addition, respondent, pursuant to Judiciary Law § 90 (6-a) and the provisions of the federal restitution order, consents to the entry of an order by this Court directing that he make monetary restitution to Open Gate totaling $3.1 million, less any amounts already paid out by himself and his codefendant, or paid to the victim of his fraud by a third party in the course of a civil proceeding after the date of the restitution order, and that he reimburse the Lawyers' Fund for Client Protection any amounts it has paid out with regard to the $3.1 million loss. Respondent acknowledges that his resignation is subject to any future application that may be made for an order pursuant to Judiciary Law § 90 {**159 AD3d at 187} (6-a), directing that he make restitution or reimburse the Lawyers' Fund for Client Protection, and consents to the continuing jurisdiction of this Court to make such an order.

The Committee does not oppose the motion. Accordingly, as respondent's affidavit of resignation conforms with 22 NYCRR 1240.10, his motion is granted to the extent of accepting his resignation from the practice of law, disbarring him, and striking his name from the roll of attorneys effective nunc pro tunc to September 18, 2017. Further, respondent is directed to make monetary restitution to Open Gate totaling $3.1 million, less any amounts already paid out by himself and his codefendant, or paid to the victim of his fraud by a third party in the course of a civil proceeding after the date of the restitution order, and to reimburse the Lawyers' Fund for Client Protection any amounts it has paid out with regard to the $3.1 million loss. Respondent's resignation is subject to any future application that may be made for an order pursuant to Judiciary Law § 90 (6-a), directing that he make restitution or reimburse the Lawyers' Fund for Client Protection, and this Court retains jurisdiction to make such an order.

Manzanet-Daniels, J.P., Gische, Mazzarelli, Kapnick and Webber, JJ., concur.

Motion is granted, respondent's resignation is accepted and his name is stricken from the roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to September 18, 2017, and directed to make restitution, pursuant to Judiciary Law § 90 (6-a).