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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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?
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?
Q: And you were paid by these insurance companies for the billing submitted by your ...