On appeal from Superior Court of New Jersey, Law Division, Camden County, 02-05-81.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Payne and Lihotz.
Defendant, Eliezer Martinez, the former chief executive officer and president of Hispanic Counseling & Family Services (HCFS), a Camden mental health counseling center founded by defendant, appeals from his convictions for second-degree health care claims fraud in violation of N.J.S.A. 2C:21-4.2 and -4.3, and third-degree Medicaid fraud in violation of N.J.S.A. 30:40-17(a), arising from knowing over-billing of mental health counseling services performed by HCFS's counselors. After reducing the second-degree crime to one of the third degree for purposes of sentencing, the trial judge imposed a custodial sentence of five years for health care fraud and a concurrent three-year custodial sentence for Medicaid fraud. Additionally, the judge imposed a restitution obligation of $137,958 and a fine of $275,916. The judgment of conviction stated with respect to restitution:
The restitution of $137,958.00 imposed by the Court represents approximately 20% of the total claims submitted by Hispanic Counseling and Family Services from May 1, 1998 through December 31, 1998, said restitution is imposed pursuant to N.J.S.A. 2C:43-3h.*fn1
With respect to the fine, the judgment of conviction stated:
The fine of $275,916.00 represents twice the pecuniary benefit realized by the defendant, said fine is authorized pursuant to N.J.S.A. 2C:21-4.3(a).*fn2 Additionally, the fine imposed is necessary to deter this defendant and others from engaging in similar fraudulent enterprises.
This portion of the judgment of conviction concluded with the following statement:
It is the Court's opinion that the fines and restitution imposed against this defendant are necessary and appropriate and are imposed in accordance with the criteria set forth in N.J.S.A. 2C:44-2.
On appeal, defendant initially asserted the following arguments:
I. THE PROSECUTION'S SUMMATION URGED A THEORY THAT THE STATE NEVER PRESENTED TO THE GRAND JURY AND THUS SOUGHT CONVICTION FOR A CRIME FOR WHICH ELIEZER MARTINEZ NEVER HAD BEEN INDICTED, IN VIOLATION OF HIS RIGHT NOT TO BE CONVICTED OR PROSECUTED WITHOUT A GRAND JURY HAVING INDICTED, AND IN VIOLATION OF PRINCIPLES OF DUE PROCESS AND FUNDAMENTAL FAIRNESS.
A. The State's Change Of Theory Upon Summation, And Injection Of A Theory Of Liability That Contradicted The Grand Jury Presentation, Violated The Grand Jury Clause Of The State Constitution, Art. I Sec. 8.
B. The Prosecution's Summation Involved Impermissible "Sandbagging."
C. The Holding in State v. Talley Does Not Save This Case From The Constitutional Infirmity of Transgressing From The Indictment Clause Of The Federal And State Constitutions, Nor Does It Cure The Violation Of Fundamental Fairness From An Eleventh-Hour Change Of Theory.
D. Independent Of Concerns For "Notice" And "Due Process," The Doctrine Of Judicial Estoppel Renders The Prosecution's Summation Improper.
II. THE STATE IMPERMISSIBLY INVOKED THE JURY'S SUPPOSED DUTY TO VINDICATE OR AVENGE THE INTERESTS OF ...