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State of New Jersey v. Florence Acquaire

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 13, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FLORENCE ACQUAIRE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 3-10-0185.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 13, 2011

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 U.S. CONST., AMENDS. VI, XIV; N.J.CONST. ART. I,. PAR. 10

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy a two-part test by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Whether a hearing on an ineffective assistance of counsel claim on a PCR petition is necessary is a matter within the court's discretion. See State v. Preciose, 129 N.J. 451, 462 (1992); see also R. 3:22-10(b) (requiring a hearing only upon the establishment of a prima facie case, a determination that there are disputed facts that cannot be resolved by reference to the existing record, and a determination that a hearing is necessary to resolve the claims for relief). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.

Defendant argues she was entitled to a hearing to determine whether her trial counsel was ineffective for recommending a non-jury trial, for not asking the trial judge to recuse himself, and for misinforming her about the extent to which a former prosecutor would assist the defense. Defendant also contends trial counsel failed to properly prepare for trial, failed to introduce exculpatory evidence, and failed to call two witnesses. Finally, defendant contends that trial counsel failed to explain that she was "license eligible" though unlicensed, and failed to present evidence concerning the background of her submission of claims to the insurance companies.

The PCR judge determined that defendant's claims consisted of bald assertions that did not demonstrate prejudice, criticisms of a legitimate but failed trial strategy, and evidence irrelevant to the charges against defendant. The PCR judge concluded that in view of the overwhelming evidence against defendant, she failed to demonstrate any reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. After carefully considering the record and briefs, we affirm substantially for the reasons explained by the PCR judge. Defendant's arguments are without sufficient merit to warrant discussion in another written opinion. R. 2:11-3(e)(2).

Affirmed.

20110713

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