Goldmann, Collester and Mintz. The opinion of the court was delivered by Collester, J.A.D.
The four defendants appeal from their respective convictions, following a jury trial, of conspiracy to obtain money under false pretenses from the Maryland Casualty Company, in violation of N.J.S.A. 2A:98-1. Yormark and Perwin also appeal from their convictions on three-count indictments charging them individually with obtaining money under false pretenses from the Maryland Casualty Company, in violation of N.J.S.A. 2A:111-1. All of the indictments were consolidated for the purpose of trial.
Following the convictions Yormark, Perwin and Mulvaney were each sentenced on the conspiracy indictment to penitentiary terms of 18 months, 12 months in custody and 6 months on probation, and fined $1,000. Brizard was sentenced to a penitentiary term of 18 months, 6 months in custody and 12 months on probation, and fined $1,000. Yormark was sentenced on the three-count indictment for obtaining money under false pretenses, as follows: on the first count to a penitentiary term of 18 months, 12 months in custody and 6 months on probation, to be served consecutive to the sentence imposed on the conspiracy indictment, and fined $1,000; on the second count to a concurrent penitentiary term of 18 months, 12 months in custody and 6 months on probation, and fined $1,000; and on the third count to a concurrent penitentiary term of 18 months, which was suspended, probation for 18 months imposed, and a $1,000 fine levied. Perwin was sentenced on the three-count
indictment for obtaining money under false pretenses, as follows: on the first count to a penitentiary term of 18 months, 12 months in custody and 6 months on probation, to be served consecutive to the sentence imposed on the conspiracy indictment, and fined $1,000; and on each of the second and third counts to a concurrent penitentiary term of 18 months, 12 months in custody and 6 months on probation, and to pay a fine of $1,000. In addition to the above sentences Yormark, Mulvaney and Brizard were each ordered to pay $16,750, representing one-quarter of the costs of prosecution.
The conspiracy indictment charged that Yormark and Perwin, attorneys of this State, Mulvaney and Brizard, physicians of this State, and Vincent Morelli and Albert Albrizio conspired with Anthony Cortese, a claims supervisor of the Maryland Casualty Company, to obtain money under false pretenses from the insurance company, Cortese, although named as a co-conspirator, was not included as a defendant in the indictment. Morelli and Albrizio were severed from the indictment at the outset of the trial. Cortese and Morelli testified on behalf of the State.
The trial extended over a period of four months. The State's proofs revealed that in May or June 1967 Morelli, whose wife's automobile was insured by the Maryland Casualty Company, together with Leo Jeronowitz, the owner of an automobile body repair shop, and Cortese initiated a plan to defraud the insurance company. Jeronowitz was prevented from thereafter playing an active role in the conspiracy because of a serious illness which proved fatal on September 22, 1967.
The plan agreed upon was that Morelli would report a fictitious automobile accident to his wife's insurance carrier, admitting that he had caused the accident while driving his wife's car, with resulting property damage and personal injuries sustained by fictitious occupants of the other vehicle. Cortese would arrange for payment of the fraudulent claims submitted.
In August 1967 Morelli and Cortese decided to put their plan into operation. It was agreed that the six bogus claimants should be represented by two different attorneys in order to make the case look more legitimate. Cortese said he would get Perwin to act as one of the attorneys; Morelli was to secure the other. Morelli concocted the following names for the claimants: Joseph Taylor as the owner and operator of the other car, and Frank Taylor, Charles Taylor, John McBride, Sr., John McBride, Jr. and Phillip Allison as the passengers.
Thereafter Cortese telephoned Perwin and arranged for him to represent the three Taylors in their claims against the company which he, Cortese, would personally supervise. Perwin agreed to secure medical bills of about $200 for each of the Taylors and to send a letter to Mrs. Morelli stating that he represented them. Perwin subsequently sent the letter and notified Cortese that Dr. Mulvaney was the "treating physician."
Meanwhile, Morelli asked one Hy Chuven to get a lawyer to handle a "phony" accident case. That evening, or the next, Morelli received a telephone call from Yormark, who said he was a friend of Chuven's. Morelli told Yormark he wanted him to represent three of six claimants in a bogus accident case; that the insurance carrier was the Maryland Casualty Company; that Cortese would handle the claims, and that the "accident" had not yet happened because they had not decided "where it would be." Morelli informed Yormark that he would have to provide the necessary doctor's bills. Yormark agreed to handle the claims, said he knew Cortese and would work it out with him, and asked Morelli to have Cortese call him. Morelli reported the conversation to Cortese, who telephoned Yormark and confirmed the arrangement. Yormark agreed to obtain medical bills for each bogus claimant in approximate amounts of $200. It was not until several weeks later that Cortese supplied Yormark with the names and addresses of his fictitious clients and told him to send a letter of representation to Morelli.
Yormark then told Cortese that Dr. Brizard would be the treating physician.
With the preliminary part of the plan completed, Morelli on August 18, 1967 reported to the insurance company that while driving his wife's automobile on the previous day he had collided with another motor vehicle on the J Street ramp of the Manhattan Bridge in New York City. He gave the names and addresses of the fictitious occupants of the other car.
The property damage claim for the Taylor car was paid by an insurance company check issued by Cortese in the amount of $3,400 payable to "Joseph Taylor." The check was given to Morelli, who cashed it through Albert Albrizio. The proceeds were shared by Morelli and Cortese.
After Yormark sent his letter of representation to Morelli and notified Cortese that Dr. Brizard would be the treating physician, Cortese told Morelli to arrange to have three persons go to Brizard's office. Morelli, his brother Peter, and a third person, posing as the McBrides and Allison, went to the doctor's office. They told Brizard they had been sent by Yormark. There was no medical examination; Brizard merely wrote down some information and said he would send reports to Yormark. Cortese subsequently received from Yormark Dr. Brizard's medical bills for the claimants, each in the approximate amount of $200. Thereafter Cortese arranged for Morelli to have the same imposters, posing as the McBrides and Allison, examined by Dr. Jack Siegal for the insurance company. A similar arrangement was made for them, posing as the Taylors, to be examined by Dr. S. Wolfe Emmer for the company. While Morelli and his cohorts fooled Dr. Siegal completely, Dr. Emmer sent a confidential letter to Cortese reporting that he did not believe the three men he had examined. Cortese immediately destroyed the letter.
In November 1967 Cortese called Yormark and advised him of the payments that would be made to settle the McBride and Allison claims. There were no negotiations;
Yormark accepted the figures. Cortese had Yormark prepare releases in blank for each claimant. The releases and Brizard's medical bills were sent to Cortese. Cortese gave the releases and insurance company drafts, made payable to Yormark and his clients, to Morelli, who arranged to have the signatures of the claimants forged and the releases notarized. After Morelli returned the documents Cortese met Yormark at the latter's office and gave him the checks. Yormark endorsed and deposited them in his trustee account. After deducting his fee for each case Yormark issued checks payable to his fictitious clients and gave them to Cortese. Cortese turned them over to Morelli, who had the names of the McBrides and Allison forged and deposited them in a savings and loan account opened for that purpose. The funds were later withdrawn and divided by Morelli and Cortese.
The same procedure was substantially followed in the settlement of the Taylor claims with Perwin. There were no negotiations. Cortese fixed the amount for each claim; Perwin submitted the releases drawn in blank, together with Dr. Mulvaney's bills for the three claimants. Cortese issued company checks for each claim, payable to Perwin and the claimant, and turned them over, together with the releases, to Morelli. Morelli had the Taylor names forged thereon and the releases notarized. Cortese then took the checks to Perwin's office and received in return checks drawn on Perwin's office trust account payable to each of the Taylors, less Perwin's fees. Cortese turned these checks over to Morelli, who had them forged and cashed. The proceeds were shared by Morelli and Cortese. Perwin gave a check in the amount of $300 to Dr. Mulvaney instead of the charges, totaling $685, which appeared on his bills.
Defendants denied the charges in the indictments. Yormark testified that on September 27, 1967 the two McBrides came to his office and arranged that he represent them and Phillip Allison in their personal injury claims arising out of an automobile accident which occurred on August 17.
They said they were passengers in a car operated by Morelli and had been treated by Dr. Brizard. The case was settled following negotiations with Cortese on November 24, 1967, and releases for the three men were sent to McBride, Sr. at his place of business with instructions that they be signed and notarized. When the releases were returned Yormark sent them, together with Brizard's medical bills to the insurance company. Yormark said that upon receipt of the insurance company checks he delivered over checks, less his fees, to the McBrides and Allison at his office. He denied having even talked to Morelli and said that prior to negotiating the settlement he had never talked to Cortese about the case. He also denied that the McBrides and Allison were sent to him by Chuven and claimed he had never heard of the Taylors.
Defendant Perwin claimed that he had been duped by Cortese. He testified that his first knowledge of the Taylor claims was on August 25, 1967 when Cortese telephoned that he had a case for him. Cortese gave him the names of the Taylors and said they were friends of his. As a result he wrote a letter of representation to Mrs. Morelli. He testified that Cortese told him the Taylors were being treated by Dr. Mulvaney. He admitted that he never met the Taylors and was never informed of the extent of their alleged injuries. He later received Dr. Mulvaney's bills and negotiated a settlement of the claims with Cortese. He prepared the releases and sent them to Cortese to be executed by the Taylors, together with the medical bills. Cortese thereafter brought the company checks in payment of the claims to his office. The checks were deposited in a trust account and checks, made payable to the Taylors less his fees, were delivered to Cortese. He denied ever talking to Dr. Mulvaney about the claims and said he had no knowledge that Yormark represented other persons allegedly injured in the accident.
Dr. Mulvaney testified that he had no independent recollection of having treated the Taylors. He relied upon his
office records, which indicated that the Taylors had first come to him for treatment on August 18, 1967 and that he had treated them thereafter. He verified the bills submitted by Perwin as his and admitted that Perwin had paid him $300, which was less than the amount of his bills. Mulvaney testified that he had not known Morelli or Dr. Brizard before the trial.
Dr. Brizard testified that he had examined and treated the McBrides and Allison but could not produce his records which, he said, had been lost or destroyed. He sent Yormark a bill for treatments rendered, but could not recall whether he had been paid. Brizard ...