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State of New Jersey v. Benjamin Levine

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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