
    In the Matter of Irwin Smith, an Attorney, Respondent. Joint Bar Association Grievance Committee for the Tenth Judicial District, Petitioner.
    Second Department,
    July 27, 1976
    
      
      Robert Roberto, Jr., for petitioner.
    
      Boland & Pittoni (Donald J. Boland of counsel), for respondent.
   Per Curiam.

The respondent was admitted to practice by this court on June 20, 1956. In this proceeding to discipline him for professional misconduct, the petitioner moves to confirm the report of the Justice of the Supreme Court to whom the issues were referred for hearing and report.

The respondent was charged with two specifications of professional misconduct as follows: (1) on November 29, 1972 and on January 5, 1973 the respondent was charged, in separate indictments, with the crimes of grand larceny in the second degree and violation of subdivision 6 of section 374 of the Social Services Law and on September 24, 1973, he pleaded guilty to one count of violation of subdivision 6 of section 374 of the Social Services Law in satisfaction of both indictments, and, on November 26, 1973, he was sentenced to a three-year term of probation and directed to make restitution in the sum of $2,900; and (2) issuing false and fraudulent checks and commingling escrow funds with his own personal moneys. The gravamen of the indictments was that the respondent received and converted to his own use $2,500 from each of two different clients under the false pretense that he would effect an adoption of a yet unborn child, although he was not a licensed or authorized agency under the Social Services Law.

The respondent admitted the truth of the material allegations of the charges except as to the escrow funds, which he alleged he was justified in using because he was given permission to utilize those funds by his client. The reporting Justice found the respondent guilty of the allegations in the charges.

After reviewing all of the evidence and the report of Mr. Justice Altimari, we are in full accord with the findings in the report and find the respondent guilty of the charges. Accordingly, the petitioner’s motion to confirm the report is granted.

In determining the appropriate measure of discipline to be imposed, we have taken into consideration the respondent’s previously unblemished record, the mitigating circumstances as alleged by the respondent and the fact that some restitution has been made. The respondent is hereby suspended from the practice of law for a period of two years, commencing August 1, 1976.

Gulotta, P.J., Hopkins, Martuscello, Latham and Damiani, JJ., concur.  