Category Archives: App. Div. 1st Dept.

Identification of drugs not necessary for Health Care Fraud

In a case of first impression, the First Department interpreted the new Health Care Fraud crime, Penal Law Article 177.  In People v Khan (1st Dept. 1/20/2011) (Acosta, J.) (5-1), Defendant was convicted of Health Care Fraud (HCF) 4°.  A person is guilty of HCF 4° (§ 177.10) when he commits HCF 5° (§ 177.05) and the aggregate amount wrongfully received during a one year period exceeds three thousand dollars.

Section 177.05 provides that:

A person is guilty of health care fraud in the fifth degree when, with intent to defraud a health plan, he or she knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information or omission, he or she or another person receives payment in an amount that he, she or such other person is not entitled to under the circumstances.

The NYPD and NY Human Resources Administration conducted a joint undercover investigation of a pharmacy in two phases.  During the first phase, an investigator made multiple cash purchases from Defendant of prescription drugs (Amitriptyline and Clonidine) without a prescription.  During the second phase, the investigator was provided with a Medicaid card and prescriptions for various drugs.  The card and prescriptions were issued to a fictitious person that the investigator identified to Defendant as his wife.  On multiple occasions the investigator presented prescriptions to the Defendant and requested that Defendant dispense drugs to the investigator other than the drugs prescribed.  The investigator told Defendant that he needed the drugs so that he could make money.  Defendant generally complied with the investigator's requests, and on multiple occasions he dispensed Amitriptyline and Clonidine instead of the prescribed drugs.  Subsequent to each transaction in the second phase, Defendant submitted reimbursement requests to Medicaid that indicated that he had dispensed the prescribed drugs to the fictitious person.  Defendant received reimbursements from Medicaid pursuant to this arrangement which, in aggregate, exceeded three thousand dollars during a one year period.

On appeal, Defendant argued that the evidence was insufficient to support the HCF 4° conviction because the People failed to establish the falsity of the information provided to Medicaid.  The First Department cited People v. Ramirez, 33 A.D.3d 460 (1st Dept. 2006), for the proposition that evidence is to be viewed as a whole when determining support for a conviction.  The court held that § 177.05 did not require the People to prove the chemical composition of the drugs.  The court indicated that the falsity of the information turned on the identity of the recipient and not the identity of the drug.  Although the court acknowledged that the evidence concerning the March 6, 2008, incident was weak, it found that this weakness was alleviated by considering the nature of the relationship between the investigator and Defendant established and cultivated during the combined phases.  Thus, the court affirmed the conviction on the ground that the evidence was sufficient when examined as a whole.

In dissent, Justice Catterson contended that the evidence proffered was sufficient to support a HCF 5° conviction but insufficient to support a HCF 4° conviction.  The dissent focused on the evidence concerning March 6, 2008; the dissent argued that because the evidence as to this particular date's transaction was weak, the People were not able to establish the $3,000 threshold for HCF 4º.  On March 6, 2008, the investigator presented a prescription for a drug called Sustiva, but requested that Defendant instead dispense “the usual pills.”  Per the arrangement established during the first phase, “the usual pills” meant Amitriptyline and Clonidine.  Defendant dispensed a bottle of pills labeled Sustiva.  The dissent argued that because the People failed to proffer the actual identity of the pills there was insufficient evidence to support the conclusion that Defendant falsely informed Medicaid that he dispensed Sustiva.  Additionally, the dissent argued that the evidence concerning March 6, 2008, was insufficient to conclude that Defendant knew on that day that the investigator was not delivering the drugs to the person named on the prescriptions.  The dissent agreed that the evidence concerning the other dates in question was sufficient to support the conviction, but by excluding the March 6 reimbursement the aggregate reimbursement amount dropped below the three thousand dollar threshold.  Thus, the dissent would have reduced the conviction. (MM/LC)

Statements admissible in rape case even though victim died

The First Department affirmed a conviction for Rape 1° and Burglary 1° in People v. Shaw (1st Dept. 1/11/2011).  In that case, the victim made statements describing the rape to police officers and a treating physician (a gynecologist) at a hospital. The court held that neither of these statements were testimonial, and thus were admissible as they did not violate the Confrontation Clause. 

The victim died years before the defendant was identified through DNA evidence.  The first statement was made to a police officer and was not testimonial because it was made “to enable police assistance to meet an ongoing emergency.” The court dismissed the possibility that the officer was gathering information in preparation for prosecution; instead, it articulated that the officer’s primary purpose was “to ascertain what had happened and deal with the danger posed to other persons in the area by a knife-wielding suspect who had just committed a violent crime, and who might have still been nearby.” The court added that the officer needed to gather facts to determine if the victim required prompt medical assistance. 

Second, statements made to a gynecologist a hospital were not testimonial because they were made in the course of receiving medical treatment.  Although the doctor prepared a sexual assault form and questionnaire as part of the rape kit she administered, the court held that her role in gathering the evidence for the police via the rape kit was secondary. 

Finally, any error was held to be harmless because the declarations were “cumulative to unchallenged declarations” made to others and admitted into evidence and due to the overwhelming evidence to establish force. (RB/LC)

AD1 considers suspension notice foundation issue

A defendant’s confrontation right is violated when documentary evidence of a license suspension is admitted without an opportunity to cross-examine the affiant.  

In People v. Abelo (1st Dept. 12/28/2010), Defendant was convicted at a bench trial of Aggravated Unlicensed Operation of a Motor Vehicle 2° (AUOMV2°). An AUOMV2° conviction requires that the People prove that the Defendant had knowledge or reason to know that he was driving with a suspended license.  To satisfy this element, the People introduced suspension notices through the direct examination of a DMV employee.  The employee testified to having worked for the DMV since 2002 and stated that in 1992 and 1993 the DMV mailed the Defendant suspension notices.  On cross-examination, the employee admitted that she could not testify to DMV mailing procedures during 1992 or 1993.  The trial court refused to admit notices from 1993, but admitted a notice from 1992.

On appeal, the Defendant argued that the People were required to produce a witness who was familiar with DMV mailing procedures of the respective periods for cross-examination.  Three First Department justices agreed with the Defendant.  The court reversed the conviction and ordered a retrial.  The court reasoned that a witness without knowledge of the relevant procedures could not lay the appropriate foundation, nor did the witness satisfy the obligation established by the Confrontation Clause.

The court found this error was not harmless, because the evidence also showed that, despite having a suspended license in the early 1990s, the DMV issued him new licenses on several occasions afterwards when he returned to New York after brief stays in other stays.  This indicated that there was less than overwhelming evidence that the defendant knew that his license was suspended, the key issue in the case.

Justice Nardelli joined Justice DeGrasse in dissent.  The dissent disagreed with the majority’s interpretation of the witness' preparation.  They believed that the witness had familiarized herself with the 1992 DMV mailing procedures, but was not familiar with the 1993 DMV mailing procedures.  Thus the dissent would have affirmed the conviction on the ground that the 1992 notice was properly admitted.  The dissent considered the production of the DMV employee as satisfying Defendant’s confrontation right.  (MM/LC)

AD1: Correction of illegal aggregate sentence permits restructuring of component sentences

To correct an illegal aggregate sentence, an intermediate appellate court may restructure the component lawful and offending sentences such that the lawful result resembles the original aggregate sentence.

In People v. Rodriguez (1st Dept. 12/28/2010), Defendant was convicted by a jury of Attempted Murder 2°, Assault 1°, Robbery 2°, and two counts of Robbery 1°, and sentenced as a second violent offender to an aggregate term of 40 years.  The demarcation of the aggregate sentence was 25 years for Attempted Murder 2° consecutive to 15 years for Assault 1°.  The other sentences were to be served concurrently with each other and with the consecutive term.  The additional sentences consisted of 25 years for each count of Robbery 1° and 15 years for Robbery 2°.  On appeal, Defendant challenged the legality of the aggregate sentence. Penal Law § 70.25 provides that sentences for related offenses may not run consecutively where a single act constitutes: (1) multiple offenses; or (2) one of the offenses and a material element of the other offense.  The People conceded, and the First Department held, that the assault and attempted murder sentences stemmed from the same acts and therefore could not be imposed consecutively.  The First Department remanded so that the trial court could realign the sentences to lawfully arrive at the intended aggregate sentence.  Defendant argued for an interpretation of CPL § 430.10 that would preclude the trial court from altering the three concurrent sentences.

CPL § 430.10 provides that once a lawful sentence of imprisonment has commenced it may not be altered unless specifically authorized by law.  The First Department cited People v. Montel, 704 N.Y.S.2d 462 (N.Y. App. Div. 1st Dep't 2000), for the precedent of vacating illegal consecutive sentences and remanding so that concurrent sentences could be imposed consecutively to reflect the intended aggregate sentence.  The First Department indicated that the procedure set forth in Montel was proper as long as the corrected aggregate sentence did not exceed the original aggregate sentence.  Additionally, the First Department held that § 430.10 was not violated because no individual sentence would be altered on remand; instead,  only the order of sentences would be changed.

In a concurrence, Justice McGuire emphasized the challenges courts face when sentencing multiple defendants for multiple charges.  Justice McGuire noted that the Supreme Court held in Bozza v. United States, 330 U.S. 160, 166-167 (1947), that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”  In contrast with the majority, Justice McGuire noted that § 430.10 is only applicable where the entire aggregate sentence is lawful, and thus because the original aggregate sentence at issue here was illegal the trial court was free to restructure the underlying sentences.  Finally, Justice McGuire pointed out that if Defendant were permitted to prevail his aggregate sentence would be equivalent to the aggregate sentence of his far less culpable accomplice, a result that Justice McGuire found would deprive him of a just sentence.  (MM/LC)

AD1 rejects visual body cavity search under the facts

In some drug arrest cases, the police will know that a defendant has drugs on his person and, by process of elimination, determine that the only conceivable place for the drugs is a body cavity. In People v. Colon (1st Dept. 1/4/2011), however, the First Department concluded there was not evidence to support even a visual inspection of the defendant's buttocks. "To conduct 'a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity . . . [V]isual cavity inspections . . . cannot be routinely undertaken as incident to all drug arrests or permitted under a police department's blanket policy that subjects persons suspected of certain crimes to these procedures' (People v Hall, 10 NY3d at 311)." Here, the defendant was searched, pursuant to a warrant, nine days after the facts that gave rise to the warrant. There was no indication that he would have drugs on his person at the time such that a reasonable inference could be drawn that the drugs were in a body cavity, since none were found in his clothing. The First Department unanimously reversed the defendant's conviction and dismissed the indictment. (LC)