On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 05-06-00083-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Seltzer.
Defendant, Lionel Maldonado, appeals from his conviction on one count of theft by deception, N.J.S.A. 2C:20-4, for which he was sentenced to two years' probation plus forfeiture of his position as a probation officer and permanent disqualification from holding public office. N.J.S.A. 2C:51-2a(1) and -2d. We affirm.
On June 6, 2005, defendant and his live-in girlfriend Marisol Perez were indicted for purposely obtaining property from the state health benefits plan "by creating or reinforcing the false impression that at all relevant times they were married to one another and therefore entitled to enroll the said Marisol Perez in the [plan]." They were also indicted for falsifying records with respect to a health care form completed on September 17, 2001, which indicated that defendant was "widowed" when he had never been married to Marisol. The latter charge was later dismissed during trial.
Defendant filed a motion to dismiss the indictment on the grounds that he had filed a form to remove Marisol from his health plan on April 27, 2000, and that the June 6, 2005 indictment was filed beyond the five-year statute of limitations. N.J.S.A. 2C:1-6b(1). The motion was denied pursuant to a written opinion dated December 22, 2005, and the case proceeded to trial. At trial, defendant sought to introduce evidence that he had filed a discrimination complaint against his employer and that the theft-related charges were filed in retaliation for his complaint. The trial court ruled that the civil rights complaint was irrelevant. Defendant successfully moved to dismiss the second count at the close of the State's case, but the court nonetheless permitted the State to introduce in evidence the September 17, 2001 health benefit application on which that charge had been based. Defendant also unsuccessfully sought to dismiss count one at the close of the State's case. These rulings form the basis of this appeal.
The undisputed evidence at trial established that defendant and Marisol were never legally married. However, the State introduced evidence that from 1990 to 2000, defendant submitted a series of application forms that falsely indicated that Marisol Perez was "Marisol Maldonado" and that she was defendant's wife. Based on these forms, the State paid premiums and provided health and dental coverage for Marisol through June 30, 2000. The State also paid claims for Marisol, including the costs for her pre-natal care and the birth of two children fathered by defendant.
At trial, defendant testified that he believed he and Marisol were married at common law and that he acted in good faith on this belief. That was his defense to the substance of the charges. He did not testify that anyone at his place of employment told him that he was entitled to obtain health or dental coverage for Marisol. He did not testify to any effort to abandon a scheme to defraud the State. Rather, his testimony was that he believed at all times that he was entitled to coverage for Marisol because she was his "wife."
During an open enrollment period in 2000, defendant filled out revised benefit applications for health and dental coverage dated April 27, 2000, which changed his coverage from "family" including Marisol, to "parent and child" excluding Marisol. That form indicated that he and Marisol had "separated" as of July 30, 1999. In his testimony, defendant did not indicate that he filled out this form as a way of withdrawing from or abandoning any prior scheme to defraud the State or even as a way of undoing a prior mistake. Rather he contended he submitted it in the ordinary course to reflect a change in his relationship with Marisol, because they had in fact separated. In short, his entire defense was based on convincing the jury that he believed he and Marisol were married.
The State produced evidence that an application submitted in the ordinary course during an open enrollment period would not take effect for two months. Hence, the State continued to incur expenses and provide coverage to Marisol after April 27, 2000, until July 1, 2000.
According to a Divison of Pensions employee, Nancy Ronaghan, until 1998 the State paid a higher premium for defendant's health insurance coverage because Marisol was included on his policy. In 1998, the system changed to an ASO fee, which was the same regardless of coverage level. The State then paid the cost of any individual claim made. The State paid $8357.67 more in medical premiums for Marisol's coverage, although none of that expense was incurred after 1998. However, defendant's dental plan remained premium-based, which meant that until July 1, 2000, the State was paying a higher premium because Marisol was covered. As a result, the State overpaid $393.86 in dental premiums from 1994 to June 30, 2000. According to Ronaghan's testimony, the dental plan premium was paid each two-week pay period up to June 30, 2000. Therefore, the State would have incurred an additional cost due to defendant's fraud within five years prior to the filing of the indictment on June 6, 2005.
The State also introduced evidence that defendant knew he was not entitled to coverage for Marisol and that he received information that an application completed during the open enrollment period would not take effect immediately. The State presented testimony that employees annually received a booklet from their health plans explaining their coverage, how to change coverage due to a change in family status such as a separation, and when such a change would become effective. Defendant admitted receiving such a book, although he claimed he did not read it. Further, according to witness Kenneth Dunn, the effective date of the open enrollment was announced to employees during the open enrollment period. In other words, defendant would have been notified that if he changed his coverage in April 2000, the change would become effective the following July. ...