NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-0050.
George L. Schneider argued the cause for appellant (Genova Burns Giantomasi & Webster, attorneys; Mr. Schneider, of counsel and on the brief; Francis M. Giantomasi, on the brief).
Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Hsu, of counsel and on the brief).
Before Judges Grall, Simonelli and Koblitz.
A jury found defendant Rostislav "Steven" Vilshteyn guilty of second-degree health care claims fraud by submitting or causing the submission of fictitious bills, N.J.S.A. 2C:21-4.2 and N.J.S.A. 2C:21-4.3c, and third-degree Medicaid fraud by submission of false claims with the intent to fraudulently secure payments, N.J.S.A. 30:4D-17(b). The jury acquitted defendant of third-degree Medicaid fraud by giving kickbacks, N.J.S.A. 30:4D-17(c). Defendant was sentenced to a five-year term of imprisonment for health care claims fraud and a concurrent three-year term for Medicaid fraud. His sentence also includes obligations to pay $200, 000 in restitution and the appropriate fines, penalties and assessments.
Defendant appeals his conviction asserting six grounds for reversal and arguing that the cumulative impact of the errors requires it. He argues:
I. DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE EVIDENCE PRESENTED BY THE STATE WAS MANIFESTLY INSUFFICIENT.
II. THE SUMMARY CHARTS OF BILLING RECORDS RELATING TO BLOOMFIELD HEALTH PAVILION PATIENTS WERE NOT ADMISSIBLE AS BUSINESS RECORDS; WITHOUT THOSE RECORDS DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
III. STATEMENTS BY THE PROSECUTOR IN SUMMATION VIOLATED THE N.J.R.E. 404(B) PROHIBITION ON OTHER CRIME EVIDENCE BY SUGGESTING THAT DEFENDANT HAD COMMITTED FRAUD WITH RESPECT TO OTHER UNNAMED PATIENTS AT BHP WHO DID NOT TESTIFY AT TRIAL (NOT RAISED BELOW).
IV. THE TRIAL JUDGE'S INAPPROPRIATE COMMENTS UNDERMINED THE DEFENSE AND DENIED DEFENDANT A FAIR TRIAL (NOT RAISED BELOW).
V. THE JURY CHARGES CONTAINED CRITICAL ERRORS OF OMISSION AND COMMISSION (NOT RAISED BELOW).
A. The Charge on the Statutory Inferences Was Unwarranted.
B. The Charge Was Deficient In Failing To Instruct the Jury that Defendant's General Supervisory Control Over BHP Did Not Equate to Criminal Culpability for All Acts of Improper Billing.
C. Giving an Unnecessary Charge and Omitting a Necessary Charge Constituted Plain Error.
VI. THE COURT MISINTERPRETED THE REQUIREMENTS FOR A CLAWANS MISSING WITNESS INSTRUCTION AND, AS A RESULT, ERRED IN FAILING TO INSTRUCT THE JURY ACCORDINGLY.
VII.THE CUMULATIVE IMPACT OF THE ERRORS ASSERTED IN POINTS III, IV, V, AND VI REQUIRES REVERSAL.
The most significant of the foregoing issues is defendant's claim that the jury instructions on health care claims fraud were flawed. We agree but determine the error to be harmless.
The charges against defendant were based on his role in the operation of Bloomfield Health Pavilion (BHP), an outpatient community health care facility in Newark providing mental health and substance abuse therapy. Medicaid benefits paid to BHP on behalf of Medicaid beneficiaries were for sessions of individual psychotherapy, individual substance abuse psychotherapy, or group psychotherapy. The grand jurors did not allege that defendant was one of the ...