On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 05-03-419.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 7, 2006
Before Judges Kestin, Lefelt and Hoens.
The State appeals, on leave granted, from a trial court order dismissing count one of an indictment. That count charged second-degree insurance fraud under N.J.S.A. 2C:21-4.6.*fn1 The appeal requires us to determine whether the State has alleged a sufficient number of acts of insurance fraud to elevate the charged crime from third-degree to second-degree. N.J.S.A. 2C:21-4.4 through -4.7 were newly enacted in L. 2003, c. 89, to become effective on June 9, 2003. These criminal provisions were modeled upon N.J.S.A. 2C:21-4.2 to -4.3, enacted in 1997 to establish second- and third-degree crimes for health care claims fraud. N.J.S.A. 2C:21-4.6b establishes two grades of crime depending upon the number of acts of insurance fraud knowingly committed in order to obtain a benefit of at least $1,000. The commission of five or more such acts is a second degree crime. "Otherwise, insurance fraud is a crime of the third degree." Ibid. That section also provides:
Each act of insurance fraud shall constitute an additional, separate and distinct offense, except that five or more separate acts may be aggregated for the purpose of establishing liability pursuant to this subsection. Multiple acts of insurance fraud which are contained in a single record, bill, claim, application, payment, affidavit, certification or other document shall each constitute an additional, separate and distinct offense for purposes of this subsection.
On a motion to dismiss a criminal indictment, the facts upon which the indictment is based must be viewed indulgently in favor of the State. "[E]very reasonable inference is to be given to the State [and] the evidence need not be sufficient to sustain a conviction, but merely sufficient to determine that there is prima facie evidence to establish that a crime has been committed." State v. Graham, 284 N.J. Super. 413, 416-17 (App. Div. 1995), certif. denied, 144 N.J. 378 (1996). An indictment should not be dismissed unless it appears clearly and plainly that it is insufficient. See State v. Hogan, 144 N.J. 216, 228- 229 (1996). Nevertheless, an indictment cannot stand unless the State has presented the grand jury "with at least 'some evidence' as to each element" of the alleged crime, although the quantum of such evidence "need not be great." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App Div.), certif. denied, 151 N.J. 77 (1997); see also State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984), certif. denied, 101 N.J. 224 (1985).
The State's factual presentation to the grand jury in this matter was through the testimony of an investigator from the office of the Attorney General's Insurance Fraud Prosecutor. Her investigation disclosed that on December 4, 2003, defendant reported to the Menlo Park Mall police substation that her car had been stolen from the mall. The next day, she called her insurance company. Defendant then submitted an affidavit to the insurance company asserting the theft. The investigation revealed that the vehicle had been found burning in Brooklyn, New York on November 27, 2003.
The investigator testified further that, when the insurance company confronted defendant with the information about the discovery in Brooklyn, she withdrew her claim in a writing that was signed and witnessed. According to the investigator, defendant also admitted to a representative of the Fire Marshal in New York that she had been unable to sell the vehicle and "gave it to a friend to get rid of[.]"
Toward the end of the investigator's testimony before the grand jury, the deputy attorney general making the presentation, together with the investigator, summarized the statutorily required five acts defendant had allegedly committed as follows:
Q: * * * [S]he filed a false report with ...