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State v. Lundy

November 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN R. LUNDY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-11-3721.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2008

Before Judges Fuentes, Gilroy and Chambers.

On leave granted, the State appeals from the September 9, 2007 order of the Law Division denying its motion to disqualify attorney Saul J. Steinberg and his law firm, Sufrin, Zucker, Steinberg, Sonstein & Wixted (the Firm), from representing defendant John R. Lundy in this criminal proceeding. We reverse.

On November 2, 2006, a Camden County Grand Jury charged defendant under Indictment No. 06-11-3721 with second-degree healthcare claims fraud, N.J.S.A. 2C:21-4.3c and N.J.S.A. 2C:2-6 (Count One), and with three counts of second-degree attempted theft by deception, N.J.S.A. 2C:20-4 and N.J.S.A. 2C:5-1 (Counts Two, Three and Four). The charges allege that defendant provided healthcare services to individuals injured in automobile accidents and then submitted payment claims for the services to the parties' automobile insurance carriers, although defendant was not licensed in the State of New Jersey to render the healthcare services.

On August 24, 2007, the State served Steinberg with a list of its prospective trial witnesses, which included the names of approximately fifty individuals previously treated by defendant for which services defendant later submitted payment claims to the witnesses' automobile insurance carriers. Three of the prospective witnesses were individuals that other members of the Firm had previously represented in prosecuting personal injury protection (PIP) claims against their automobile insurers. The PIP claims arose from the same injuries treated by defendant. On October 24, 2007, in the course of identifying exhibits for trial, the Division of Criminal Justice found letters dated July 7, 2000, and August 21, 2000, from the Firm to two of the prospective witnesses' automobile insurers. The Division's investigators contacted the two prospective witnesses and verified that members of the Firm had represented them in prosecuting prior PIP claims.

On October 30, 2007, the State filed a motion seeking to disqualify Steinberg and the Firm. After filing the motion, the State discovered that a third prospective witness who was also treated by defendant was represented by the Firm in prosecuting the witness's PIP claim. During the course of oral argument, Steinberg informed the court that there may be a fourth witness similarly situated as the other three. Steinberg stated that the name of another individual contained in the State's list of prospective trial witnesses was identical to that of a client that the Firm had previously represented in prosecuting a PIP claim.

The State's motion was argued on November 1 and 7, 2007. After determining that the prospective witnesses' PIP claims were resolved years prior, the court stated at the November 7, 2007 proceeding:

You can both sit down.

By reason of the fact I really don't find under the circumstances this being a direct conflict. I would feel a lot more relaxed if it was a non-jury, and again I bring up procedurally what we had discussed and this is not [this judge] sitting over you, Mr. Steinberg, or with a wink-wink saying, "Well, if you go non-jury then maybe I can do something for you." You were the one that broached the subject first. I think that's fair to say and this is well in advance of me even knowing this.

If you are going non-jury I am going to deny the application without prejudice and again, that is not putting any pressure on your client. I very well still may deny the motion if he goes jury. I just want that clear.

So at this point in time I'm punting. I am withholding a final decision but I can indicate if it is a non-jury the application will be denied. I feel comfortable that since I'm both sitting as judge and jury that the issue can be controlled where I feel totally comfortable in handling the issues at hand and allowing both of you to present your case freely and it will not have any impact on me and my decision.

If he is going non-jury I feel comfortable proceeding with Mr. Steinberg as counsel. That is a definite. But I caution because I don't want anybody to think or any appellate review of this that I am putting some pressure on Mr. Steinberg to go non-jury. And the reason I put on the record the fact that Mr. Steinberg was the first person well in advance of any of the three of us knowing that this was a potential issue, he's the one that brought up the fact that this is -- I assume, reading between the lines and knowing you as I have for far too many years, that you see this case more of an interpretation of the law than you do of the facts to a point where ...


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