May 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDRIC FEIT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-09-00108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2010
Before Judges Fisher and Espinosa.
Defendant is a physician who was indicted on two second-degree counts of health care claims fraud, N.J.S.A. 2C:21-4.3(a), alleging false claims totaling more than $520,000, and one count of second-degree theft by deception, N.J.S.A. 2C:20-4(a) and N.J.S.A. 2C:2-6. Pursuant to a plea agreement, he pled guilty to a down-graded third-degree charge of theft by deception, waived his right to a restitution hearing and agreed to pay full restitution to the insurance companies. He does not seek to withdraw his guilty plea. In this appeal, he asks that this matter be remanded for a full plenary hearing on the issue of restitution and that a fine of $15,000 be vacated. We affirm.
The plea agreement here was memorialized in the standard written plea form and can be summarized as follows. Both second-degree health care claims fraud counts were to be dismissed and defendant agreed to plead guilty to a single count of theft by deception that was amended from a second-degree charge to a third-degree charge. The prosecutor did not agree to recommend any sentence. Paragraph 20 on page 3 of the form inquired as to any additional promises made by defendant, the prosecutor, defense counsel or anyone else. The following was written in response: "Defendant understands that any licensing questions will be handled by N.J. Board of Medical Examiners." Defendant signed the plea form on page 3 and initialed a handwritten addendum under his signature that reads "Defendant waives restitution hearing and leaves decision to judge."
The transcript of defendant's guilty plea reflects that all these terms were set forth on the record. At the outset, his attorney stated, "He understands that he's facing full restitution here." The Deputy Attorney General added, "It's the understanding of the State that the defendant will be waiving his right to a restitution hearing in this case." Defense counsel confirmed that this was correct.
At the plea hearing, defendant was directly questioned by his counsel regarding the factual basis for his guilty plea and the amount subject to restitution:
Q: And did you bill to health insurance carriers for the paraspinal nerve block procedure on patients without the benefit of [fluoroscopic] guidance?
A: Yes, sir.
Q: [A]nd you admit that when you sent these bills out you didn't do any [fluoroscopic] guidance on these paraspinal nerve blocks, is that correct?
A: Yes, sir.
Q: And you were paid by these insurance companies for the billing submitted by your practice, is that correct?
A: Yes, sir.
Q: Okay. And the aggregate amount of the count that you're pleading guilty to was between 500 and 75,000, is that correct?
A: Yes, sir.
Q: But you understand separate and apart, that the restitution can be up to the full amount of what was in the indictment, do you understand that?
A: Yes, sir.
In addition, the trial court questioned defendant about his understanding of the terms of the plea agreement:
Q: [D]id you hear what the attorney said about the terms of the plea agreement between yourself and the State of New Jersey?
A: Yes, sir.
Q: And did you understand it?
A: Yes, sir.
Q: And do you agree that what the attorney said is accurate as to the complete terms of the plea agreement between yourself and the State?
Q: Yes, sir.
A: In fact, that plea agreement in its entirety has been reduced to writing on these two pages, pages 2 and 3, because if you look at paragraph 12 and 13 on page , and then if you look over at paragraph 20 on page 3, as well as the very bottom of page 3, all the terms and conditions of the plea agreement are set forth accurately in writing on this particular form on those two pages, do you agree?
A: Yes, sir.
By this last answer, defendant confirmed that the details of the plea agreement summarized above accurately reflected his plea agreement, including and specifically referencing the handwritten addendum under his signature, "Defendant waives restitution hearing and leaves decision to judge."
At sentencing, the Deputy Attorney General specifically noted that as part of the plea agreement, "[d]efendant has waived his right to a restitution hearing and has agreed to make full restitution to the insurance companies . . . in the amount of over $581,000." No objection or questions were raised by defendant about this statement. The only question raised was that of the court regarding the mathematical calculation that resulted in the amount sought by the State. The court's calculation, based upon spreadsheets attached to the presentence report, resulted in a lower amount, $578,978.12. Therefore, before either defense counsel or defendant addressed the court regarding the sentence to be imposed, the amount of restitution was fully revealed in the presentence report and set forth on the record. Yet, the defense took no exception to anything in the presentence report or to the court's calculation. In arguing for a non-custodial sentence, defense counsel referred to the waiver of a restitution hearing:
We gave something away here also. That's not to contest the amounts, not to contest . . . the amounts. That was part of the agreement, knowing that he has to do that.
In his allocution, defendant did not raise any questions regarding the amount of the restitution he would be required to pay.
In assessing the aggravating and mitigating factors relevant to defendant's sentence, the court specifically found N.J.S.A. 2C:44-1(b)(6) applicable based upon the defendant's representation "that he will compensate the victims for the damage or injuries sustained by making restitution." The court found that the mitigating factors outweighed the aggravating factors and sentenced defendant to probation for a period of five years, a maximum statutory fine of $15,000, $50 VCCB penalty, $75 Safe Neighborhood Assessment Fee and restitution in the amount of $578,978.12, to be paid over the period of probation at a minimum amount of $100,000 per year.
In this appeal, defendant raises the following issues:
DEFENDANT'S PLEA, WHILE VOLUNTARY, WAS WITHOUT THE REQUISITE KNOWLEDGE OF ALL CONSEQUENCES HE WAS FACING, INCLUDING, BUT NOT LIMITED, TO HIS POSSIBLE LOSS OF MEDICAL LICENSE, AS WELL AS THE IMPOSITION OF THE RESTITUTION.
DEFENDANT WAS ENTITLED TO A PLENARY HEARING, FOLLOWING HIS GUILTY PLEA, ADDRESSING ALL ISSUES.
THE LOWER COURT'S IMPOSITION OF A $15,000.00 FINE WAS EXCESSIVE.
After carefully considering the record, briefs, and arguments of counsel, 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), beyond the following brief comments.
We note that defendant does not challenge the right of the court to require restitution on counts dismissed as part of the plea agreement or argue that the court ordered restitution in an amount he cannot afford to pay. When a defendant has pled guilty pursuant to a plea agreement, a sentencing court [may] order restitution on crimes alleged in counts to which a defendant has not pleaded guilty as long as (1) there is a reasonable relationship between the restitution and the defendant's rehabilitation, and (2) there is a factual underpinning supportive of the restitution. [State v. Krueger, 241 N.J. Super. 244, 253 (App. Div. 1990) (citing State v. Bausch, 83 N.J. 425, 433-36 (1980)).]
Therefore, at the time of plea, a defendant must provide a sufficient factual basis to "satisfy the court that he is aware that he has victimized the would-be recipient[s] of the proposed payments" and must be "advised on the record that he may be ordered to make restitution on counts to which he does not plead guilty." Krueger, supra, 241 N.J. Super. at 254.
The record demonstrates that defendant was adequately advised that he agreed to make restitution up to the amount alleged in the indictment, including the counts dismissed, as part of the plea agreement. Defendant did question the amount of the restitution sought at the time of his plea. The trial court set forth the precise amount of restitution it had calculated based upon spreadsheets attached to the presentence report before defense counsel's argument and defendant's allocution. Defendant did not take any exceptions to the presentence report or the amount calculated by the court prior to the imposition of sentence. Even now, he has not identified any sum that is not properly included as the fruits of the offenses charged. We therefore conclude that his claims that he was not provided with adequate information about restitution at the time of plea and is now entitled to a full plenary hearing lack merit.
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