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State v. Acquaye

October 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDWARD ACQUAYE, DEFENDANT-RESPONDENT.



On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-01-00143.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2009

Before Judges Rodríguez and Yannotti.

We granted leave to the State to appeal from the interlocutory order granting defendant Edward Acquaye's petition for post-conviction relief (PCR), vacating defendant's conviction based on a guilty plea. We affirm.

These are the salient facts. In June 2006, defendant pleaded guilty to third degree Medicaid fraud, N.J.S.A. 30:4D-17(c). This charge stemmed from defendant's acceptance of kickbacks from Michael Stavitski, the owner of Belmar Pharmacy, in return for defendant steering the prescriptions of all the residents of his residential healthcare facility, Lincoln Rest Center in Jamesburg, to Belmar Pharmacy. These prescriptions were paid by Medicaid pursuant to the New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -19.5. In exchange, the State agreed to recommend a non-custodial term conditioned on the payment of $1500 in restitution and a $1000 fine and to recommend "that defendant does not lose [his] license to provide [nursing/rest home] care."

At the plea hearing, defendant acknowledged reviewing and understanding the plea form, which he signed and initialed at every page. Before accepting the plea, the judge informed defendant that the State's promise to recommend that he be able to retain his New Jersey State license to operate Lincoln Rest Center was not guaranteed because the licensing authorities were independent agencies and not bound by the State's recommendation. The judge said, "I don't think anyone can guarantee or promise you[] that you're not going to lose your license. You understand that[,] right?" Defendant replied, "Yes." Defendant then gave an adequate factual basis for his guilty plea. The judge accepted the plea. Instead of imposing a probationary term, the judge suspended imposition of the sentence for five years with the condition that defendant pay $1500 in restitution and a $1000 fine.

Three weeks after this disposition, the United States Department of Health and Human Services, Office of Inspector General (OIG), advised defendant that, as a result of this conviction, he would be excluded from participation in all federally-funded healthcare programs for a period of five years pursuant to 42 U.S.C. § 1320a-7(a). The letter informed defendant that he had thirty days from the date of the letter to "submit any information and supporting documentation [he] want[ed] the OIG to consider before it [made] a final determination regarding [his] exclusion." A subsequent letter informed defendant that he was excluded from participating in any healthcare programming which receives federal funding. Defendant was advised of his right to a hearing to appeal his exclusion. Defendant did not request a hearing.

The OIG also notified the New Jersey Division of Medical Assistance and Health Services (Division) of this exclusion.

The Division then notified defendant that, as a consequence of OIG's decision, he was excluded from participating in any healthcare program receiving federal funding for five years. Defendant and his wife, Freda Acquaye, a fifty percent owner and Chief Operating Officer of Lincoln Rest Center, decided to voluntarily close the facility and surrender its license.

Defendant filed this PCR petition, arguing that the State and the court failed to inform him of his automatic exclusion from participating in Medicaid programming and all federally-funded healthcare programs pursuant to 42 U.S.C. § 1320a-7(a). Defendant asked the court to vacate his plea on the ground that the plea was unknowing and involuntary as a result of the State's failure to inform him of the automatic exclusion.

The same judge who accepted the plea and sentenced defendant heard oral arguments. The judge determined that there was not a meeting of the minds between defendant and the State regarding the terms of the plea agreement. The judge ruled preliminarily that failure to inform defendant that he would not be able to participate in federally-funded healthcare programs would render defendant's previous decision to enter the plea an uninformed one. The judge gave the parties a September 19, 2008 deadline to resolve the matter or, in the alternative, to proceed with an evidentiary hearing to determine what the understanding was between the parties.

On October 16, 2008, the judge held an evidentiary hearing. At this hearing, both defendant and the Deputy Attorney General who appeared at the plea hearing testified. In a supplemental brief, another Deputy Attorney General certified that the State contacted OIG and spoke to Joanne Francis, an OIG representative, to inquire if defendant had requested any appeals or hearings after receiving the letter of exclusion. Francis replied that defendant filed a response to the OIG letter, but made no request for a hearing.

The judge granted defendant's PCR petition, finding that defendant's guilty plea was not entered knowingly, voluntarily, or intelligently because the State's promise to recommend that defendant not lose his New Jersey license to operate a rest home implied, according to the judge, that defendant had a chance of continuing to operate Lincoln Rest Center. However, because defendant's debarment from federally-funded healthcare programs was a mandatory result of the guilty plea, continued operation of the business was "practically ...


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