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State v. Acquaire

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FLORENCE ACQUAIRE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 03-10-0185-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 23, 2007

Before Judges Coburn, Fuentes and Grall.

At the end of a bench trial, defendant, Florence Acquaire, was found guilty of second-degree health care claims fraud, N.J.S.A. 2C:21-4.2, N.J.S.A. 2C:21-4.3, and N.J.S.A. 2C:2-6 (counts one and four); attempted second-degree theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6, and 2C:5-1 (count two); two counts of third-degree theft by deception, N.J.S.A. 2C:20-4, and N.J.S.A. 2C:2-6 (counts three and six); and attempted third-degree theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6, and N.J.S.A. 2C:5-1 (count five). Her motion for a new trial was denied; and after merger of some offenses, she received an aggregate sentence of imprisonment for seven years. The judge also ordered restitution of $69,574.45.

In our view, a brief summary of the most pertinent testimony will suffice since we are satisfied that all of the trial judge's detailed findings are fully supported by the record.

The evidence of defendant's guilt was quite overwhelming. Defendant has been an electrologist for about thirty years, but she practices that profession without having the appropriate State license. She is not a physician, and the service she provided was cosmetic hair removal. Before July 1998, defendant billed her clients directly, usually at $300 per hour. Then she began billing insurance companies at a rate of between $1,200 and $1,800 per hour. Instead of properly describing the service as electrolysis, which is not covered by the insurance companies, she billed for debridement, which is a procedure to remove dead skin tissue. A number of defendant's patients testified that they came to her for electrolysis and that that is what they received.

Between August 1998 and June 3, 2000, defendant billed one insurance company for almost $40,000, of which it paid $4,508. Between July 25, 1998 and April 12, 2000, defendant billed another insurance company for over $840,000, and received over $64,000 in payment.

Dr. William Perry, a plastic surgeon, who the judge did not qualify as an expert witness, explained the difference between electrolysis and debridement, and described defendant's patented procedure, S.E.S., as an improved method of electrolysis that permanently removes hair through a non-invasive process.

Defendant testified that her S.E.S. procedure performed debridement and that she billed the insurance companies at the higher rate because that was the rate for debridement. A physician testified on defendant's behalf, opining that S.E.S. was capable of performing debridement, and that CPT code 11042, the code for debridement, accurately describes the procedure followed by defendant.

On appeal, defendant offers the following arguments:

POINT ONE

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL JUDGE'S FINDING OF GUILT (Partially Raised Below).

POINT TWO

THE TRIAL COURT ERRED IN ALLOWING THE STATE'S LAY WITNESS TO TESTIFY, BASED ON HIS READING OF DEFENDANT'S PATENT, AS TO THE WORKINGS OF THE S.E.S.

POINT THREE

DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO PROVIDE INFORMATION REGARDING ALLEGATIONS ABOUT THE ATTORNEY GENERAL'S INSURANCE FRAUD UNIT CONSTITUTED BOTH A BRADY VIOLATION AND NEWLY DISCOVERED EVIDENCE.

POINT FOUR

DEFENDANT'S SENTENCE WAS EXCESSIVE.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). Nonetheless, we add the following comments on defendant's second point.

Defendant argues that the judge erred in allowing Dr. Perry to testify that her S.E.S. patent performed electrolysis and not debridement. She contends that this opinion should not have been received without qualifying the doctor as an expert, and she further argues that the opinion was not admissible under N.J.R.E. 701, which concerns lay opinions. A trial judge's decision concerning the admissibility of evidence should be sustained unless there has been an abuse of discretion. State v. Marrero, 148 N.J. 469, 505 (1997). But even assuming that the judge erred in receiving this opinion, which we are inclined to doubt since Dr. Perry demonstrated a complete understanding of both debridement and electrolysis, and had performed both procedures on numerous occasions, we do not perceive the evidence as being clearly capable of producing an unjust result.

R. 2:10-2. We reach that conclusion because the evidence of defendant's guilt was otherwise overwhelming, including, in particular, the testimony of many of her clients that the service they sought and received was electrolysis and not debridement.

Affirmed.

20071031

© 1992-2007 VersusLaw Inc.



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