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In the Matter of the Expungement of the

January 28, 2013

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF R.Z.


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-09-0044.

The opinion of the court was delivered by: Ostrer, J.A.D.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 27, 2012

Before Judges Messano, Ostrer and Kennedy.*fn1

The opinion of the court was delivered by OSTRER, J.A.D.

The State appeals from the trial court's April 2, 2012 order expunging R.Z.'s April 30, 1999 judgment of conviction for second-degree theft by deception, N.J.S.A. 2C:20-4, and second- degree financial facilitation of criminal activity, known commonly as money laundering. N.J.S.A. 2C:21-25. The State argues the court erred because N.J.S.A. 2C:52-2(a) precludes expungement if the petitioner has been "convicted of any prior or subsequent crime," and R.Z.'s theft preceded the separate money laundering offense. Petitioner argues the two offenses should be treated as a single crime because they occurred close in time, and involved a single scheme, victim, and judgment of conviction. Because we determine petitioner failed to meet his burden to prove he committed his crimes concurrently, and not on "separate occasions," In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008), we reverse and remand for proceedings consistent with this opinion.

I.

R.Z. and several other individuals and corporations were indicted by a State Grand Jury in September 1997 and charged with various crimes involving the Medicaid program. On December 23, 1998, R.Z. entered a plea to two counts of the indictment as part of an agreement in which the State promised to recommend concurrent sentences of six years, a fine of $5,000 on each count, and restitution of $50,500.

Defendant pled guilty to count fifteen, which charged that he committed theft "between on or about August 26, 1995 and . . . December 22, 1995" in Paterson, Manalapan Township and elsewhere. Specifically, it was charged he did obtain Medical Assistance payments under the New Jersey Medical Assistance and Health Services Act, (N.J.S.A. 30:4D-1 et seq.), in an amount in excess of $75,000, by submitting claims which created or reinforced the false impression that certain laboratory tests . . . had been ordered by a physician and were performed on blood supplied by the Medicaid recipient who was the subject of the claim:

WHEREAS, in truth and fact, as . . . [R.Z.] well knew, the laboratory tests . . . had not been ordered by a physician and were not performed on blood supplied by the Medicaid recipient who was the subject of the claim, contrary to the provisions of N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6, N.J.S.A. 2C:2-7, N.J.S.A. 2C:5-1[.]

Defendant also pled guilty to count sixteen, which charged he committed money laundering during a narrower time frame, "between on or about September 6, 1995 and . . . December 16, 1995," in Manalapan Township and elsewhere. Specifically, the indictment charged defendant did commit the offense of financial facilitation of criminal activity (money laundering), in that [he] did engage in transactions involving property known to be derived from criminal activity, as set forth in Counts Thirteen, Fourteen and Fifteen of this indictment, . . . knowing that the transactions were designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the property derived from criminal activity, that is Mohammad Javid, United Diagnostics Laboratories, Inc., and United Clinical Laboratory, Inc. did make payments to Astro Supply Company and Arshad Khan in the approximate amounts of $761,834.76 and $39,876.00, respectively, and did so in a manner designed to conceal or disguise the nature, location, source, ownership or control of the money because neither [R.Z.] nor Arshad Khan, t/a Astro Supply Company, supplied any goods or performed any services to warrant said payments, contrary to the provisions of N.J.S.A. 2C:21-25b, N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-7[.]

In his allocution, defendant admitted that he was a manager of medical offices in Paterson for co-defendants Mohammad Javid and Arshad Khan. He stated he oversaw lab work sent to United Diagnostic Laboratories (United Diagnostic), a corporate defendant, and would bill Medicaid. He responded affirmatively when asked if he were aware "that forms or paper work that were being submitted to the lab were fraudulent[.]"

He explained, "Well, the lab - there used to be a patient - the Medicaid ID numbers. And they were just put on the lab forms. And blood was drawn either from patients or came from people that would sell blood and be submitted to United Diagnostics Laboratory." When asked what compensation he received "for working at the clinics," defendant stated he received two ...


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