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State of New Jersey v. Benjamin Levine

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN LEVINE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-05-0864.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 13, 2012 --

Before Judges Payne, Simonelli and Accurso.

Defendant, Benjamin Levine, M.D., appeals from his conviction by a jury of third-degree unlicensed practice of medicine, N.J.S.A. 2C:21-20 (count one), second-degree theft by deception, N.J.S.A. 2C:20-4 (count two), two counts of fourth-degree falsification of records, N.J.S.A. 2C:21-4a (counts six*fn1 and eight), and third-degree insurance fraud, N.J.S.A. 2C:21-4.6 (count seven).*fn2 He was sentenced to a term of incarceration of eight years on the conviction for second-degree theft by deception, to concurrent three-year terms of incarceration on the third-degree convictions for unlicensed practice of medicine and insurance fraud and to eighteen months on the fourth-degree conviction for falsification of records set forth in count six. The conviction for falsification of records set forth in count eight was merged with defendant's conviction on count seven. In addition, defendant was ordered to pay $176,078.10 in restitution to the victims identified in count two of the indictment charging theft by deception. The State has conceded that this amount should be reduced to $149,935.43. The matter will be remanded to permit the entry of an amended judgment reflecting that amount.

Defendant has appealed, presenting the following arguments through counsel:

POINT I - THE STATE LACKED JURISDICTION TO INVESTIGATE AND PROSECUTE ALLEGED MEDICARE FRAUD, THUS, DEFENDANT'S CONVICTION FOR SECOND-DEGREE THEFT BY DECEPTION, OF WHICH MEDICARE FRAUD WAS A COMPONENT, MUST BE REVERSED.

POINT II - THE JURY INSTRUCTIONS WERE DEFECTIVE.

A. THE JURY CHARGE CONCERNING THEFT BY DECEPTION WAS DEFECTIVE, AS IT FAILED TO ADDRESS THE ISSUE OF AGGREGATION UNDER N.J.S.A. 2C:20-2b(4), RESULTING IN AN ERRONEOUS VERDICT ON COUNT TWO OF THE INDICTMENT. (Not Raised Below.)

B. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO PROPERLY CHARGE THE ELEMENTS OF N.J.S.A. 2C:21-20 (UNLICENSED PRACTICE OF MEDICINE). POINT III - THE STATE'S USE OF THE PHRASE "AND/OR" THROUGHOUT THE INDICTMENT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO BE ADVISED OF THE CHARGES AGAINST HIM. (Not Raised Below.)

POINT IV - THE COURT'S SUA SPONTE RULING ON WITNESS ROEDER'S EXPERTISE WAS ERRONEOUS, THEREBY TAINTING THE JURY'S ASSESSMENT OF THAT WITNESS' TESTIMONY.

A. STATE'S WITNESS ROEDER WAS

IMPROPERLY PERMITTED TO TESTIFY ABOUT THE ULTIMATE ISSUE OF DEFENDANT'S ALLEGED UNLICENSED PRACTICE OF MEDICINE, AND DEFENDANT'S CONVICTION ON COUNT ONE SHOULD THEREFORE BE VACATED. (Not Raised Below.)

POINT V - THE TRIAL COURT ERRED WHEN IT PERMITTED THE STATE TO AMEND COUNT SIX OF THE INDICTMENT AFTER THE STATE HAD RESTED AND HAD FAILED TO PROVE THE ALLEGATIONS OF THE ORIGINAL CHARGE.

POINT VI - N.J.S.A. 45:1-7.1 VIOLATES DR. LEVINE'S CONSTITUTIONAL RIGHTS TO PROCEDURAL DUE PROCESS AND IS UNCONSTITUTIONAL; THEREFORE, DR. LEVINE'S CONVICTION ON COUNTS ONE AND TWO SHOULD BE REVERSED.

POINT VII - DR. LEVINE'S CONVICTION FOR THE UNLICENSED PRACTICE OF MEDICINE UNDER N.J.S.A. 2C:21-20 SHOULD BE REVERSED BECAUSE HIS MEDICAL LICENSE WAS NOT KNOWINGLY SUSPENDED, REVOKED OR OTHERWISE LIMITED BY ORDER OF THE MEDICAL BOARD.

Additionally defendant has filed a pro se brief, in which he argues:

POINT I [THE] JUDGE DENIED DEFENDANT A FAIR TRIAL BY REFUSING TO ALLOW DEFENDANT REPRESENTATION BY THE PAID ATTORNEY KNOWING A NEW YOUNG INEXPERIENCED ATTORNEY WAS NOT PREPARED. POINT II

DEFENDANT'S FOURTH AMENDMENT RIGHTS WERE VIOLATED BY HIS ILLEGAL ARREST AND DENIAL OF HIS MOTION FOR A PROBABLE CAUSE HEARING, R. 3:4-2(B)(7).

POINT III

DEFENDANT FILED A FEDERAL REMOVAL PURSUANT TO TITLE 28 § 1443(1) AFTER BEING DENIED A PROBABLE CAUSE HEARING FILED MARCH 23, 2006 PRIOR TO THE GRAND JURY HEARING WHICH WAS REMANDED BACK TO THE STATE ON JANUARY 15, 2008 RENDERING ALL GRAND JURY VERDICTS "VOID AB INITIO."

POINT IV

DEFENDANT POSSESSED A CONSENT ORDER LICENSE WHICH THE UNITED STATES SUPREME COURT HELD WAS A CONTRACT AND THE MEDICAL BOARD NEVER DENIED THAT IT WAS, ALLOWING DEFENDANT TO RELY ON THAT ORDER FOR HIS DEFENSE, N.J.S.A. 2C:2-4(C)(2).

POINT V [NO POINT HEADING SUPPLIED]*fn3

POINT VI

THE MEDICAL MALPRACTICE LAW OF 1998 VIOLATES THE STATE CONSTITUTION AS WELL AS THE UNITED STATES CONSTITUTION, AS IT HARMS REPUTATION, TAKES AWAY A "PROTECTABLE INTEREST" MEDICAL LICENSE AND DISCRIMINATES AGAINST LOW INCOME PHYSICIANS.

POINT VII

THE MEDICAL BOARD'S DECISION TO SEEK HUGE COSTS COUCHED AS REMEDIAL ARE SO EXCESSIVE

THAT THEY TRIGGER DOUBLE JEOPARDY AS BEING PUNITIVE COSTS.*fn4

POINT VIII

THE CONDUCT OF DR. LEVINE IS AN EXCLUSIVE MEDICAL BOARD AGENCY JURISDICTION MATTER AND THE MATTER WAS IMPROPERLY USURPED BY THE PROSECUTOR USING BAD FAITH AGGRESSIVELY. POINT IX

DEFENDANT WAS NOT ARRAIGNED ON ANY INDICTMENT UNTIL OCTOBER 6, 2006 THAT WAS TWO MONTHS AFTER SUBMISSION OF HIS INSURANCE APPLICATION SUBMITTED JULY 24, 2006, AS REVEALED IN PROMIS GAVEL, PROVING DEFENDANT DID NOT COMMIT INSURANCE FRAUD.

POINT X

DEFENDANT WAS NOT ARRAIGNED ON COUNT VI VIOLATING DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS.

POINT XI

THE PROSECUTOR COACHED INVESTIGATORS, BERTELSON AND SUGALSKI TO WITHHOLD EXCULPATORY EVIDENCE TO HAVE THE DEFENSE, N.J.S.A. 2C:2-4(c)(2), DENIED.

POINT XII

NO MEDICARE OR HEALTH INSURANCE THEFT EXISTS AS DEFENDANT, BY LAW, POSSESSED HIS LICENSE THAT DID NOT LEGALLY OFFICIALLY EXPIRE AND THE MALPRACTICE INSURANCE LAW VIOLATED FOURTEENTH AMENDMENT RIGHTS.

POINT XIII

THE TRIAL COURT'S FACT-FINDING AND DECISIONS ARE NOT SUPPORTED BY ADEQUATE EVIDENCE IN THE RECORD AND ARE SO "WIDE OF THE MARK"

THAT APPELLATE REVIEW IS REQUIRED TO RENDER A JUST DECISION.

In a pro se reply brief, defendant, improperly, raises some additional arguments in asserting as follows:

I. This Case is Not A Complicated Matter.

II. Dr Levine's License Did Not Officially Expire.

III. The Consent Order of 1991 Had A Four Year Time Term.

IV. Dr Levine's Grand Jury Testimony May 19, 2006.

V. Dr. Levine Was Not Arraigned.

VI. The Mistake Defense.

VII. Mr. Roeder Was Not Prepared To Testify.

VIII. The Prosecutor's False Statements.

IX. The Charge Conference.

X. [The] Judge Denied Representation By The Paid Attorney.

XI. The Prosecutor's Multiple Summation Errors.

XII. The Consent Order Contract, Professor Raveson And Due Process.

XIII. The Prosecutor's Deception Of This Court.

XIV. Sentencing Errors.

I.

The record of trial discloses that defendant initially received his license to practice medicine in New Jersey in 1970. In this State, medical licenses are effective from July 1 to June 30 and must be renewed every two years on the odd year. If a doctor's license is not renewed within thirty days of June 30 of the applicable year, the doctor's license is suspended by operation of law. N.J.S.A. 45:1-7.1c, governing professional licenses, including licenses to practice medicine, states:

Any individual who continues to practice with an expired license or certificate of registration or certification after 30 days following its expiration date shall be deemed to be engaged in unlicensed practice of the regulated profession or occupation, even if no notice of suspension has been provided to the individual.

Defendant's license to practice medicine required renewal by June 30, 2003. Although he denies receipt of a license renewal form, evidence establishes that, on April 1, 2003, defendant submitted a "prerenewal application" for the period from July 1, 2003 through June 30, 2005. One section of the prerenewal application was captioned "MEDICAL MALPRACTICE COVERAGE," and it stated: "By law you must have medical malpractice insurance (in the amount of at least $1 million per occurrence and $3 million per policy) or a letter of credit (in the amount of at least $500,000) unless you are exempt." In response to the form's questions, defendant stated that he did not have "the required medical malpractice insurance coverage or a letter of credit[,]" and he stated that he was not exempt. Defendant appended to the prerenewal application a note that stated:

Dear Medical Board, I delayed returning these forms because I could not obtain affordable malpractice insurance after my previous insurer stopped doing business in New Jersey and elsewhere. I desperately need help as I know liability insurance is required. Please provide an answer for me.

My take pay [sic] last year was less than 2,000. My wife supports me. [signed] Benjamin Levine.

Colleen Feldman, a secretarial assistant employed by the Board of Medical Examiners (Medical Board) testified at trial that she called defendant on April 30 and May 1, 2003 to discuss the prerenewal application. On May 1, defendant returned her call, at which time Feldman informed him that he could not practice without medical malpractice insurance. In trial testimony, defendant acknowledged speaking to Feldman, although he testified that she had not mentioned insurance when instructing him "don't practice" because "[y]ou didn't get your renewal certificate or you wouldn't get it." Defendant acknowledged that he did not submit a renewal application for the 2003-05 period.

Defendant's friend and patient, Jay Tauber, testified on defendant's behalf that, in July 2003, defendant had mentioned his insurance difficulties, at which time Tauber offered to "help him with $700,000 of malpractice support" effective July 21, 2003. However, the offer of money was not in the form of a letter of credit, and the agreement was not memorialized in a letter to the Medical Board until three years later, on December 14, 2006, at which time Tauber stated:

This letter is being written at the request of Dr. Benjamin Levine to explain my agreement to give him malpractice support of at least $700,000 if he should have a judgment against him after Monday, July 21st, 2003.

Despite the language contained in the prerenewal application, defendant testified that he did not know that he could satisfy the insurance requirement of his license renewal with a letter of credit until "maybe a year, maybe a year and a half" after Tauber's verbal offer of financial support. Defendant never sought or obtained a letter of credit in the relevant time period.

Following receipt by the Medical Board of an anonymous letter, dated December 25, 2003, stating that defendant was practicing medicine and prescribing drugs without a license, Susan Sugalski, an investigator with the Enforcement Bureau of the Division of Consumer Affairs was assigned to investigate the allegations. Upon taking the assignment, Sugalski made a sweep of pharmacies in the area in which defendant practiced, requesting that those pharmacies permit her to view pharmacy profiles pertaining to defendant for the period from June 2003 to June 2004 in order to determine whether he was writing prescriptions. Additionally, Sugalski requested that her colleague, Investigator Tracey Muse, pose as a patient and determine whether defendant would treat her, which he did on August 30, 2004, following up on the visit with a letter requesting her comments and asking whether she would refer other patients to the office. Sugalski served a subpoena upon defendant to obtain the records of Muse's visit, but defendant refused to produce them.

In or around April 2005, Sugalski was requested to obtain copies of the pharmacy profiles that she had reviewed earlier. Following service of subpoenas requesting records generated between June 30, 2003 and June 30, 2004, records regarding approximately 110 of defendant's patients were produced by three pharmacies in defendant's geographic area. Then, in October 2005, Sugalski was asked to determine whether defendant was still practicing. Sugalski did so by calling defendant's office and making an appointment for her elderly father-in-law.

At the time, she was assured by the person answering the phone that defendant accepted Medicare reimbursement as payment for his services.

Similarly, Medical Board employee Feldman called defendant on November 9, 2005. An answering machine message stated that the office was closed, but would reopen at 9:00 a.m. on Thursday. The message stated further that if there was an emergency, the caller should call defendant's pager. Feldman did so, and defendant returned her call, at which time Feldman informed him that his license was expired and he should not be practicing medicine. Feldman testified that defendant stated that he was still unable to obtain medical malpractice insurance.

Prior to any definitive action by the Medical Board regarding defendant's continued practice of medicine, the Middlesex County Prosecutor's Office became interested in the matter as the result of its receipt, in September or early October 2005, of anonymous information that defendant was practicing medicine without a license. Investigator Mark Bertelson was assigned to the matter and, after confirming with the Medical Board that defendant's license had expired at the end of June 2003, he also confirmed defendant's continued practice of medicine by visiting his office, interviewing defendant, and asking whether he had a license to practice medicine - a question that defendant, at the time, declined to answer. Defendant similarly declined to answer whether he was receiving Medicare payments. However, Bertelson subpoenaed billing records from Empire Medicare Service, a private company that handled bills for Medicare. Bertelson testified that records that he received from Empire for services rendered by defendant in the period from July 2003 to October 11, 2005 indicated payments to him in excess of a hundred thousand dollars. Nevertheless, in a sworn statement given by defendant to Bertelson, defendant denied giving out medical advice.

Additionally, Bertelson interviewed Joanne Kent, defendant's receptionist/medical assistant from 1996 until December 2005. Although, for evidentiary reasons, Bertelson was not asked to recount the substance of the interview, Kent testified at trial that she was responsible for completing patient insurance forms and that they were reviewed by defendant before submission. She testified additionally that, after Bertelson visited the office, she was informed by defendant that she would be receiving a call from the Prosecutor's Office, and that if she were required to go for an interview, she should take a lawyer; be careful what she said; if she did not like the questions being asked, she should leave; and she should tell them that defendant had a license. Defendant also requested that Kent come in to the office to help him destroy patient files, but she refused.

Following the interview with Kent, on December 9, 2005, defendant was placed under arrest for practicing medicine without a license, and evidence relating to defendant's continued practice of medicine was seized from defendant's office. Although many records were obtained in this fashion, the investigators were unable to locate the appointment books and payroll records that Kent stated should have been present.

Subsequent investigation disclosed that defendant had deposited in his checking account several hundred checks from insurance companies and Medicare in the period from June 2003 through December 2005. Medicare records indicated that the amount of claims paid to defendant between July 1, 2003 and December 12, 2005, at a time when he was not authorized to receive such payments, was $122,790. Reimbursements from private insurers totaled $26,000.

In the meantime, in early November 2005, Medicare, having been alerted to the fact that defendant lacked a license to practice medicine, declined a claim submitted by defendant on that basis. Defendant continued his practice. However, shortly thereafter, on November 21, 2005, defendant went to the Medical Board's office to fill out a renewal application, but he still lacked insurance. In a letter dated December 7, 2005, the Medical Board acknowledged receipt of defendant's reinstatement application, and indicated that it was ready to review the new application, but it again informed him that he could not practice without medical malpractice insurance. In a letter dated December 12, 2005, defendant was informed that the Medical Board was rescinding its prior letter of intent to reinstate because, on the day after the letter had been written, the Medical Board learned that defendant had been arrested on a criminal complaint filed by the Middlesex County Prosecutor's Office initially charging him with unlawful practice of medicine, theft by deception of a sum greater than $75,000, witness tampering and tampering with evidence.

Other evidence at trial established that defendant had executed an application for medical malpractice insurance on July 27, 2006 in which he failed to disclose in answer to a question requesting such information that he was under indictment, having at that point been indicted on April 19, 2006 and June 16, 2006. Evidence also established that defendant had given false information in seeking renewal of his registration under the Controlled Substance Act.

II.

Following trial by jury and entry of a judgment of conviction, defendant appealed, raising the multitude of issues that we have listed. Our review of those issues in light of the trial record and arguments of counsel satisfies us that the vast majority lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We address only the following arguments.

III.

The jury found defendant guilty of second-degree theft by deception, N.J.S.A. 2C:20-4, for fraudulently obtaining payments from health insurers, including Medicare. On appeal, defendant argues that the State's prosecution pursuant to State criminal law was preempted by federal laws governing Medicare. In support of this proposition, he relies on Zahl v. Harper, 282 F.3d 204 (3d Cir. 2002) and United States v. Braunstein, 474 F. Supp. 1 (D.N.J. 1978).

We find Zahl to be singularly unsupportive of defendant's position, since there, the Third Circuit Court of Appeals concluded in the context of State disciplinary proceedings having as their factual basis acts by Zahl of alleged Medicare billing fraud, that the State's action was not preempted by federal Medicare law, and it thus affirmed a District Court order dismissing Zahl's complaint on grounds of abstention. In reaching its decision, the court first discussed the grounds for abstention set forth in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) and employed in a non-criminal setting in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S. Ct. 2515, 2521, 73 L. Ed. 2d 116, 124 (1982) and found the three-pronged test applicable in that context had been satisfied in the Zahl matter. Zahl, supra, 282 F.2d at 208-10.

In a second section of its opinion, relevant here, the court then addressed the issue of preemption, determining in a case in which abstention was raised as a basis for dismissal, the state interest served by abstention should be balanced against the federal interest claimed to have been usurped by the state law. Id. at 210. In that regard, the court determined that the Medicare provisions upon which Zahl relied offered no support for a claim of any federal interest in having the Secretary of the Department of Health and Human Services enforce Medicare violations. Id. at 211-12. In contrast, the court recognized "that New Jersey has a heavy and traditional interest in regulating the practice of medicine within its borders." Id. at 210-11. The court continued:

"'States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'" Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 135 L. Ed. 2d 700, [709,] 116 S. Ct. 2240[, 2245] (1996) (quoting Metro.

Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 85 L. Ed. 2d 728, [751,] 105 S. Ct. 2380[, 2398] (1985)). New Jersey recognizes that a license to practice a profession "is not a basic individual right" and the right to practice medicine "is granted in the interest of the public." In re Polk License Revocation, [90 N.J. 550, 570 (1982)]. The state regulation of the medical profession is in the public interest; power to establish and enforce health standards "is a vital part of a state's police power." Brodie v. State Bd. of Med. Exam'rs, [177 N.J. Super. 523, 532 (App. Div. 1981)] (quoting Barsky v. Bd. of Regents, 347 U.S. 442, 449, 98 L. Ed. 829, [838,] 74 S. Ct. 650[, 655] (1954)). [Zahl, supra, 282 F.3d at 211.]

Because the court found that the proceedings against Zahl were "based upon the historic primacy of state regulation of matters of health and safety and only indirectly and tangentially affect[ed] federal interests[,]" id. at 212, preemption was not found to exist. The court concluded: "If, in carrying out its obligations, New Jersey determines that a physician has or has not violated Medicare regulations, the purposes of Medicare are promoted and not subverted." Ibid.

We find Braunstein to be similarly inapposite, since it stands, in relevant part, for the proposition that, when separate State and Federal indictments are returned charging, respectively, violations of State and Federal laws as they relate to Medicare and the tax code, "no constitutional or other legal principle bars prosecution by both jurisdictions in these circumstances." Braunstein, supra, 474 F. Supp. at 8. As found by the court:

The same act or conduct may violate not only a group of laws of the same jurisdiction, but also a group of laws of several jurisdictions. In either case, the "violation" turns upon both a state of facts and a particular law. Any conviction that ensues is not for the state of facts as such, but for the violation of the particular law that is applicable. [Ibid.]

We thus reject defendant's first argument. Defendant was charged with violating New Jersey's Criminal Code through acts of theft by deception. He was not charged with violating the Medicare Act.

IV.

Defendant next asserts that the court's jury instruction on theft by deception was erroneous because it did not include an instruction that the jury had to find that "the thefts are constituent parts of a single scheme or course of conduct" as a condition for aggregating the amount involved in two or more thefts. In support of his position, defendant relies on State v. Damiano, 322 N.J. Super. 22 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000) and N.J.S.A. 2C:20-2b(4), which provides in a paragraph concerning aggregation:

The amount involved in a theft or computer criminal activity shall be determined by the trier of fact. . . . Amounts involved in thefts or computer criminal activities committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.

Theft constitutes a crime of the second degree if the amount involved is $75,000 or more. N.J.S.A. 2C:20-2b(1)(a).

Because no objection to the instruction was raised in multiple charge conferences before the trial court, we judge this newly-raised claim of error pursuant to a plain error standard. R. 2:10-2. In the context of incomplete jury instructions, the Court has held:

In general, it is speculative to forecast what verdict a jury would have returned if properly instructed on the basis of the verdict that a jury returned after an incomplete instruction. State v. Grunow, 102 N.J. [133,] 148 [(1986)]. We have cautioned that "[a]ppropriate and proper charges to a jury are essential for a fair trial," State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)), and erroneous instructions on material issues are presumed to be reversible error, excusable only if they are harmless beyond a reasonable doubt. Id. at 122-23. Such errors are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. [191,] 206 [(1979)]. [State v. Crisantos, 102 N.J. 265, 273 (1986); see also State v. Vick, 117 N.J. 288, 292 (1989).]

In State v. Childs, 242 N.J. Super. 121 (App. Div.), certif. denied, 127 N.J. 321 (1990), we discussed aggregation of amounts involved in thefts committed pursuant to one scheme in accordance with N.J.S.A. 2C:20-2b(4) in the context of multiple loans from friends and family to defendant's failing business evidenced by the issuance of short-term unsecured notes and supported by defendant's false assurances that the business was profitable and the notes bore a high rating. Id. at 126. A grand jury charged defendant, in count one of the indictment: "'between on or about January 1, 1982 and on or about August 31, 1984' defendant used these misrepresentations to commit thefts by deception from twenty named noteholders, totaling an aggregate of $319,605, a second-degree crime." Ibid. Individual losses were in amounts under the limit for a second-degree crime. Ibid.

Upon defendant's motion, the trial court dismissed count one as duplicitous because it charged defendant with committing more than one theft, but we reversed, holding that the thefts were not charged as separate and distinct third-degree offenses, but as elements of a single aggregated second-degree crime. Id. at 132-33. In doing so, we held pursuant to N.J.S.A. 2C:20-2b(4):

The amount involved in a theft is not simply a sentencing factor, but is an element of the crime that must be determined by the grand jury and the finder of fact at trial.

Before aggregating the amount involved in two or more thefts, the finder of fact must first determine whether the thefts are constituent parts of a single scheme or course of conduct. This threshold determination is an element of an aggregated theft crime. Where the evidence could support either conclusion, the indictment may charge the aggregated theft in one count and each lesser theft in separate counts. [Id. at 131.]

We continued:

Where an indictment contains one or more counts of aggregated thefts and also contains separate counts for each allegedly constituent theft, the trial judge should instruct the jury to return a verdict for every count, and to indicate with respect to each allegedly constituent theft whether it was part of a scheme or course of conduct charged in a particular aggregated-theft count. . . .

Where, as here, the indictment charges only aggregated thefts, the judge should instruct the jury in the same manner and use the same kind of verdict sheet as where the constituent thefts are charged in separate counts. [Id. at 132.]

In Damiano, supra, we again discussed the issue of aggregation in the context of multiple, but disparate, alleged acts of theft by the defendant. See Damiano, supra, 322 N.J. Super. at 38 (discussing conduct). In the course of that opinion, we addressed convictions arising from N.J.S.A. 2C:20-2b(4), a statute that we characterized as setting forth an "aggregating" crime. Id. at 51. In our discussion, we cited to Childs and quoted the language of Childs regarding instructions to the jury that we have earlier quoted. Ibid. Reviewing the charge, we noted that the trial court had appropriately charged the jury that "if it found 'the amounts involved were taken in thefts committed according to one scheme or course of conduct the amounts may be added together to form a single total amount, whether stolen from one person or several persons.'" Id. at 52. However, the court had not instructed the jury to determine "the amount of each theft or whether that particular theft was part of the scheme, or whether the crimes within the same scenario constituted a single scheme or course of conduct or whether all scenarios, taken together, did so." Ibid. Accordingly, we found the jury charge deficient and reversed the convictions on the aggregating crimes. Ibid.

In both Childs and Damiano, the defendant engaged in various different types of acts that the State sought to aggregate, and there was room for the jury to pick and choose as to which acts were a part of a common scheme and thus subject to aggregation. Reflecting that fact, our instructions regarding the jury charge in Childs speak to a situation in which "evidence could support either conclusion" that the thefts were a constituent part of a single scheme or not. Childs, supra, 242 N.J. Super. at 131-32.

In the present case, the charge of theft by deception was based solely upon evidence that defendant lacked a license to practice medicine from June 30, 2003 to his arrest. Thus, the issue of whether defendant committed theft pursuant to a "common scheme" could only have one answer, if the jury in fact found that defendant lacked a license, which it did. Moreover, evidence demonstrated that the amount that defendant claimed from a single victim - Medicare - and was paid by it during the period of defendant's alleged illegal conduct exceeded the statutory amount necessary to qualify his crime as one of the second degree, without consideration of any of the payment by other insurers. While we recognize that it would have been a better practice for the trial court to have given a more complete instruction to the jury on the issue of aggregation, we conclude under the unusual circumstances of this case that the court's error in that regard was harmless beyond a reasonable doubt, given the State's sole theory that defendant's lack of a license rendered his insurance recoveries theft, the jury's finding of a lack of licensure and its conclusion that defendant's theft was in an amount greater than $75,000. Accordingly, we decline to reverse on this basis.

Defendant also asserts error in the court's charge regarding the unlicensed practice of medicine. We disagree. N.J.S.A. 2C:21-20 states in relevant part:

A person is guilty of a crime of the third degree if he knowingly does not possess a license or permit to practice medicine and surgery or podiatric medicine, or knowingly has had the license or permit suspended, revoked or otherwise limited by an order entered by the State Board of Medical Examiners, and he:

a. engages in that practice;

b. exceeds the scope of practice permitted by the board order;

c. holds himself out to the public or any person as being eligible to engage in that practice; [or]

d. engages in any activity for which such license or permit is a necessary prerequisite, including, but not limited to, the ordering of controlled dangerous substances or prescription legend drugs from a distributor or manufacturer[.]

Our review of the court's instruction discloses that, in connection with this crime, the court read the indictment, which in somewhat shortened form, set forth the nature of defendant's alleged conduct as follows:

The Grand Jurors of the State of New Jersey, for the County of Middlesex, upon their oaths, present that BENJAMIN LEVINE, on or between the 1st day of July, 2003 through the 12th day of December, 2005, in the Township of East Brunswick, in the County of Middlesex, aforesaid and within the jurisdiction of this Court, did, knowing that he did not have the requisite license to practice medicine and/or surgery and/or knowing that said license had been suspended, knowingly and unlawfully hold himself out to any person and/or the public as a person eligible to practice medicine and/or did engage in that practice and/or engage in any activity for which such license is a necessary prerequisite; contrary to the provisions of N.J.S.A. 2C:21-20, and against the peace of this State, the Government and dignity of same.

The court then read the statute, set forth each element of the crime, defined "knowingly" and the "practice of medicine," and set forth the State's burden of proof. We find no error in that instruction. The fact that the court did not explain the difference between a license suspended as a matter of law and a license suspended by order of the Medical Board, in our view, did not constitute error, let alone plain error.

V.

Defendant also claims error arising from the court's sua sponte ruling that the Executive Director of the Medical Board, William Roeder, was an "expert," qualified as a lay witness pursuant to N.J.R.E. 701 to testify, in general, as to conditions imposed by the Medical Board on licenses to practice medicine.

The ruling arose in the following context. Earlier in Roeder's testimony, he was asked on cross examination about defendant's prior suspension from the practice of medicine, memorialized in a consent order of suspension dated September 27, 1991, marked in redacted form as D-3. The order provided for a total suspension of four years, with a twenty-month ban on practice, with the remainder to be served as a probationary period, and it imposed other conditions on defendant. Roeder was also asked about an order of limited reinstatement dated August 27, 1992, marked in redacted form as D-4.

During the course of redirect examination regarding D-3, Roeder was asked to give general examples of conditions, other than those imposed by the Legislature, that the Medical Board might put on licenses of physicians. Roeder responded:

We can put chaperone requirements on. Meaning any time the individual examines a patient, the individual needs to have a chaperone. We can put [on] time restrictions. Meaning a doctor can't practice more than 30 hours in a given week. We can put [on] procedure restrictions both where you cannot perform certain kinds [of procedures] as well as only perform [certain procedures]. We can put on restrictions as to location, that you can only practice at this particular facility. I mean, as it would relate to the type of limitations or restrictions, it's really limitless insofar as they're generally meted out on a case by case basis.

The following exchange then occurred.

Q And why are those limitations, in general, why would they be put on doctors in addition to what the Legislature requires?

[DEFENSE COUNSEL]: Objection, your Honor. Going to have nothing to [do] with the contents of the document or any speculation of what could be contained in it.

[PROSECUTOR]: We had a long, long cross-examination about this consent order. And I think it's fair that the witness can testify as to why these conditions would be put on there. I mean -

THE COURT: As a - I'm going to accept him as an expert in the area that he is testifying in. And I'll let him answer the question as a result.

A The restrictions can be put on a licensee at any given point depending where we are in the process. The restriction might be on in order to keep that person from practicing totally. It may be restrictions to allow the individual to practice on a limited or restricted basis. It may be that those limitations then get released or relaxed more and more as the board becomes more and more confident that the individual is safe to practice in . . . the State of New Jersey.

Roeder also testified that defendant was not the only person to practice under a consent order.

On appeal, defendant claims that Roeder's testimony did not meet the requirements of N.J.R.E. 701. Additionally, he contends that, in testimony given by Roeder much earlier concerning the nature of professional misconduct, he gave an opinion regarding an ultimate issue in the prosecution and that the court's later sua sponte declaration that Roeder was an expert "presumptively tainted the jury about defendant's alleged unlicensed practice of medicine, resulting in an unlawful verdict." We reject these arguments.

N.J.R.E. 701 provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

Our review of the transcript suggests to us that the prosecutor's "why" question was one that was calculated to elicit an opinion, and recognition of that fact gave rise to the court's ruling to permit the answer pursuant to N.J.R.E. 701, which we find unexceptionable, given Roeder's status and experience as the Executive Director of the Medical Board, State v. McLean 205 N.J. 438, 456-57 (2011), although we find the court's designation of Roeder as an "expert" unnecessary. Nonetheless, our examination of Roeder's response discloses it to have been entirely factual and for that reason, any error that may have occurred was entirely inconsequential.

We find no basis for concluding that the court's misstatement that Roeder was an expert tainted the jury's view of Roeder's prior testimony or that such testimony constituted an opinion on an ultimate issue in the case. On cross examination, defense counsel explored Roeder's knowledge of N.J.A.C. 13:35-6.18, which provides in relevant part:

(b) All physicians and podiatrists licensed to practice in this State who maintain a professional practice and have responsibility for patient care shall be covered by medical malpractice insurance or, if medical malpractice insurance is not available, shall secure and maintain a letter of credit at least in the sum of $500,000 or more.

(d) Physicians and podiatrists who are not covered by medical malpractice insurance shall present to the Board a true copy of the letter of credit required pursuant to

(b) above and shall notify the Board, within seven days, whenever:

1. A demand for payment on the letter has been made;

2. The continuing viability of the letter has been affected, for whatever reason[.]

(e) Violations of (b) and (d) above shall be deemed professional misconduct within the meaning of N.J.S.A. 45:1-21(e).

The referenced statute provides:

A board may refuse to admit a person to an examination or may refuse to issue or may suspend or revoke any certificate, registration or license issued by the board upon proof that the applicant or holder of such certificate, registration or license:

e. Has engaged in professional or occupational misconduct as may be determined by the board[.]

Roeder was also asked questions regarding N.J.S.A. 45:9-22, a provision specifying the penalties to be imposed on, among others, "[a]ny person commencing or continuing the practice of medicine and surgery in this State without first having obtained a license, as provided in this chapter or any supplement thereto, or contrary to any of the provisions of this chapter[.]"

On redirect examination, the following exchange occurred:

Q . . . And what in general is professional misconduct?

A Professional misconduct is a very difficult term to define.

Q Okay.

A And - but I think that it's safe to say that professional misconduct consists of a violation of the board's rules and regulations.

Q Okay. And could - could something be both professional misconduct and criminal conduct as well?

A Absolutely.

Q And do you - the medical board have any control over what the Attorney General's criminal section or Prosecutor's Office does with regard to what they see as a criminal violation?

A It does not.

As this extract illustrates, Roeder did not express an opinion as to whether defendant had committed professional malpractice such that civil penalties were required. More to the point, he expressed no opinion as to whether defendant was guilty of any of the charges against him, which included, in relevant part, only the criminal charge of the unlicensed practice of medicine. We therefore find no prejudice to defendant to have occurred.

VI.

Defendant argues additionally that N.J.S.A. 45:1-7.1 violates his procedural due process rights because it allows the State to suspend a doctor's license without notice, and because of the unconstitutionality of that statute, counts one and two of the indictment, charging the unlicensed practice of medicine and theft by deception, should have been dismissed. That statute provides in section b:

Every holder of a professional or occupational license or certificate of registration or certification, issued or renewed by a board specified in [N.J.S.A. 45:1-15], who seeks renewal shall submit a renewal application and pay a renewal fee prior to the date of expiration of the license or certificate of registration or certification. If the holder does not renew the license or certificate prior to its expiration date, the holder may renew it within 30 days of its expiration date by submitting a renewal application and paying a renewal fee and a late fee. Any professional or occupational license or certificate of registration or certification not renewed within 30 days of its expiration date shall be suspended without a hearing.

We address defendant's argument only to express our agreement with the trial court, which denied defendant's motion to dismiss the charges at issue on the basis of their alleged unconstitutionality. In doing so, the court properly distinguished Limongelli v. New Jersey State Board of Dentistry, 137 N.J. 317 (1993), upon which defendant relies, noting its holding that "constitutional due process protects against only improper suspension or revocation of a license; it does not protect against a licensing board's summary refusal to reinstate a license that has been revoked[,]" id. at 326, as occurred there.

We acknowledge that the statute that defendant challenges utilizes the term "suspended." However, we do not regard that fact as sufficient to require due process protection in this case, where defendant's license was simply non-renewed at the end of its term. We read the Limongelli Court's use of the word "suspended" in the course of its discussion of relevant precedent to refer to circumstances when an action has been taken while a license remained in operation.

In deciding defendant's motion, the trial court instead relied, in finding no constitutional issue to have been raised, upon Graham v. New Jersey Real Estate Commission, 217 N.J. Super. 130 (App. Div. 1987), a case that is factually analogous to the present one, in which we held that real estate salespersons whose licenses had automatically lapsed by operation of a statutory amendment shortening the period for renewal, had no constitutional right to notice that would occur. Id. at 135-36. We find that case to be dispositive of defendant's arguments.

Moreover, as the court noted, defendant had actual notice of the need to renew his license and the requirements that he had to meet to do so, as unequivocally evidenced by his note to the Medical Board of April 11, 2003. Further, the existence of that note served to fatally undermine any "mistake of law" argument advanced by defendant. Accordingly, defendant's argument is rejected.

We decline to address defendant's remaining arguments and affirm his conviction. We remand the matter to permit amendment of the judgment of conviction to reflect a restitutionary award of $149,935.43

Affirmed and remanded for correction of the judgment of conviction.


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