On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 3-10-0185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes andNugent.
Defendant Florence Acquaire appeals from the July 10, 2009 order that denied her petition for post-conviction relief (PCR). We affirm.
Following a non-jury trial in March 2005, the trial judge found defendant guilty of two counts of second degree health care claims fraud, N.J.S.A. 2C:21-4.2, -4.3c, and 2C:2-6; second degree attempted theft by deception, N.J.S.A. 2C:20-4, 2C:2-6, and 2C:5-1; two counts of third degree theft by deception, N.J.S.A. 2C:20-4 and 2C:2-6; and third degree attempted theft by deception, N.J.S.A. 2C:20-4, 2C:2-6, and 2C:5-1. On September 30, 1995, the court sentenced defendant to an aggregate term of seven years. We affirmed the conviction and sentence. State v. Acquaire, No. A-2932-05 (App. Div. October 31, 2007), and the Supreme Court denied certification, 194 N.J. 268 (2008).
In our opinion affirming defendant's conviction on direct appeal, we summarized the evidence presented at trial:
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 noninvasive process.
Defendant testified that her S.E.S. procedure performed debridement and that shebilled the insurance companies at the higher ratebecause that was the rate for debridement. A physician testified on defendant's behalf, opining that S.E.S. was capable of performingdebridement, and thatCPT code 11042, the code for debridement, accurately describes the procedure followed by defendant.[State v. Acquaire, No. A-2932-05 (App. Div. October 31, 2007) (slip op. at 2-3).]
Defendant filed a PCR petition on May 27, 2008, and after counsel was assigned on May 30, 2008, defendant filed an amended petition on October 24, 2008. On March 19, 2009, the PCR judge heard oral argument and permitted defendant to supplement her pleadings. On July 16, 2009, the judge issued an order denying the PCR petition, and supported his decision with a written opinion.
Defendant raises the following issue on appeal:
POINT ONE THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING THAT WAS NECESSARY TO ESTABLISH THAT SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HER AT TRIAL, BY THE ...