On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-04-0062-S.
Before Judges Cuff, Winkelstein and Lario.
The opinion of the court was delivered by: Lario, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On November 7, 2002, under state indictment 00-04-00062-S, a jury found defendant, Bruce Tarlowe, guilty of second-degree health care claims fraud, in violation of N.J.S.A. 2C:21-4.3c (count one); and third-degree theft by deception, in violation of N.J.S.A. 2C:20-4 (count two). On February 14, 2003, Judge Heimlich sentenced defendant to a term of three years imprisonment (appropriate for a crime one degree lower than the second-degree crime for which defendant was convicted, pursuant to N.J.S.A. 2C:44-1f(2)) under count one, concurrent with a term of three years imprisonment under count two. A fine of $1000, a Violent Crime Compensation Board penalty of $100, a Safe Neighborhood Service Fund assessment of $150, and a Law Enforcement Officers' Protection Act assessment of $30 were imposed, and defendant was ordered to pay restitution in the amount of $2,724.83. Defendant appeals his convictions and sentence, raising the following issues:
POINT I: THE SECOND-DEGREE CONVICTION SHOULD BE REVERSED, AND THE CHARGE DISMISSED, BECAUSE TARLOWE'S ALLEGED CONDUCT DOES NOT ESTABLISH A VIOLATION OF THE HEALTH CARE CLAIMS FRAUD ACT AS A MATTER OF LAW.
A. The proof at trial established conduct that is beyond the reach of the Act as a matter of law.
B. Applying the Health Care Claims Fraud Act to Tarlowe's alleged conduct violates his due process right to fair notice of what conduct is proscribed by criminal statutes.
C. Count one does not allege, and the jury instructions failed to require the jury to find specific intent to deceive. (Not raised below.)*fn1
POINT II: BOTH CONVICTIONS SHOULD BE VACATED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL WHEN IT PRECLUDED DR. SEMEL FROM VIEWING THE VIDEOTAPE AND TESTIFYING THAT TARLOWE'S BIZARRE ACTIONS JUST PRIOR TO THE ACCIDENT WERE SYMPTOMATIC OF HIS MEDICAL AND PSYCHOLOGICAL AILMENTS.
POINT III: BOTH CONVICTIONS SHOULD BE VACATED BECAUSE THE LAW DIVISION COMMITTED REVERSIBLE ERROR WHEN IT ADMITTED THE TIME-LAPSE VIDEOTAPE INTO EVIDENCE.
A. The time-lapse recording methodology rendered the videotape unreliable as a matter of law.
B. The Law Division plainly erred when it admitted the videotape without requiring the state to lay a proper foundation at trial under N.J.R.E. 901. (Not raised below.)
POINT IV: THE THIRD-DEGREE CONVICTION SHOULD BE VACATED BECAUSE THE LAW DIVISION COMMITTED PLAIN ERROR WHEN IT AMENDED THE INDICTMENT AND FAILED TO INSTRUCT THE JURY ON AN ESSENTIAL ELEMENT OF ATTEMPTED THEFT BY DECEPTION. (Not raised below.)
POINT V: BOTH CONVICTIONS SHOULD BE VACATED BECAUSE TWO OTHER ERRORS, STANDING ALONE OR CONSIDERED IN LIGHT OF THE ERRORS, SET FORTH ABOVE, DEPRIVED TARLOWE OF HIS ...