STATE OF NEW JERSEY v. SURBHI TARKAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0735-05T10735-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SURBHI TARKAS,

Defendant-Appellant.

________________________________________

 

Submitted September 26, 2006 - Decided October 25, 2006

Before Judges Lisa and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment

No. 03-09-161-S.

Robert G. Stevens, attorney for appellant.

Anne Milgram, Acting Attorney General, attorney for respondent (Erik W. Daab, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Surbhi Tarkas, former owner of Meadowview Nursing Home (Meadowview), pled guilty to theft by failure to make required disposition of public benefits in excess of $75,000, a crime of the second degree, N.J.S.A. 2C:20-9; N.J.S.A. 2C:20-2b(1)(a). She appeals and contends that the judge erred in requiring her to pay restitution in the amount of $119,000 as a component of her sentence for that crime. N.J.S.A. 2C:43-3; N.J.S.A. 2C:44-2b(1)-(2). Because the evidence is adequate and there is no legal error or abuse of discretion, we affirm. See State v. Locurto, 157 N.J. 463, 471-74 (1999); State v. Newman 132 N.J. 159, 169-70 (1993).

The following evidence was presented at the hearing on restitution. The public benefits at issue are "the personal needs allowances" (PNA) that each nursing home is required to deduct from the income of a Medicaid recipient before applying the remainder of the resident's income to the cost of care. N.J.A.C. 10:63-1-16(a). The PNA is intended to meet a resident's discretionary, personal and incidental needs, such as haircuts, cosmetics, newspapers, telephone calls, stationary and hobbies. N.J.A.C. 10:63-1.16(e)1, 6. The State is obligated to ensure that each eligible resident of a nursing home has monthly PNA reserved. N.J.S.A. 44:7-87.

A nursing home that is handling a resident's PNA must maintain and disburse the PNA in accordance with rules set forth in N.J.A.C. 10:63-1.16. The facility must accept "fiduciary responsibilities" for the PNA accounts it manages and maintain a separate accounting of each individual's PNA. N.J.A.C. 10:63-1.16(f)1. The nursing home must deposit PNA funds in an "interest bearing account . . . that is separate from any of the facility's operating accounts," and credit all interest earned to the resident. Ibid. Specific records of withdrawals are required. N.J.A.C. 10:63-1.16(f)2-11. Upon discharge of a resident, the facility must provide an accounting and either surrender the balance to the resident or transfer that balance to another facility. N.J.A.C. 10:63-1.16(f)12. If a resident is discharged or dies and the balance is not transferred or claimed as provided by the regulation, then the facility must return the balance of his or her PNA to the State. N.J.A.C. 10:63-1.16(f)13-14.

An investigator from the Office of the Ombudsman for the Institutionalized Elderly reviewed Meadowview's accounts and determined that defendant had spent or diverted $119,000 of PNA benefits. When she took ownership of Meadowview in May 2000, the facility had a PNA account with a balance of $103,000. Defendant withdrew all but $20,000 of that money. She used $80,000 to pay business expenses, $60,000 for legal fees and $20,000 to pay expenses for other facilities she operated. In addition to the $80,000 defendant took, she failed to pay or segregate $39,000 in PNA benefits received and owed to residents between June 1 and December 31, 2000. Because defendant had not maintained the required and necessary records, the investigator calculated the $39,000 amount by reviewing Meadowview's patient registry and multiplying the number of residents who were Medicaid recipients by the minimum monthly benefit.

Defendant did not dispute the State's calculation or contend that she had given the funds to the intended recipients. Her expert witness, an accountant, demonstrated that Meadowview accounts had a total balance sufficient to pay all PNA due from the date defendant took ownership of Meadowview until the time she filed for bankruptcy. He acknowledged that Meadowview's records did not designate any account as a PNA account or otherwise identify the funds that were held for the residents.

Defendant has a bachelor's degree from Saint Joseph's University and a graduate degree in social work from a school in India. She has experience owning and operating nursing homes, but her conviction is cause for disqualification from that work. See N.J.A.C. 10:49-11.1(d)21. Prior to this prosecution, defendant had sufficient personal wealth to loan her business $500,000. She was in her mid-fifties at the time of sentencing.

Judge Vazquez found that defendant's failure to dispose of the monthly PNA benefits as required in N.J.A.C. 10:63-1.16 resulted in a loss of $119,000. He concluded that the balance in Meadowview's general accounts at the time of the bankruptcy was irrelevant because the funds were not returned. Based on defendant's age, education and past earnings, as evidenced by her ability to loan $500,000 to her business, he determined that defendant was likely to earn sufficient income between her release from prison and her sixty-fifth birthday to fully compensate the victims of her crime.

Defendant raises three issues on appeal.

I. THE STATE FAILED TO PROVE BY COMPETENT

EVIDENCE THAT THERE WAS A LOSS

SUSTAINED BY ANYONE AS A RESULT OF

DEFENDANT'S CONDUCT.

II. THE METHOD OF CALCULATING THE LOSS WAS

SPECULATIVE AND NOT BASED UPON

COMPETENT EVIDENCE. [Not raised below]

III. THE COURT FAILED TO CONSIDER PROPERLY

THE DEFENDANT'S ABILITY TO PAY

RESTITUTION.

Defendant did not dispute or challenge the formula the State employed to calculate PNA benefits at the hearing on restitution. For that reason, we decline to consider the issue raised in Point II, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and address the remaining issues below.

The purpose of restitution is to compensate victims and rehabilitate defendants. State v. Kennedy, 152 N.J. 413, 424 (1998); Newman, supra, 132 N.J. at 169-74. Thus, restitution is a proper component of a sentence when the victim has "suffered a loss," and the defendant, "given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2b(1)-(2). The amount of restitution should provide "the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2c(2).

The victims of defendant's crime suffered a loss as a result of her conduct. "'[L]oss' means the amount of value separated from the victim or the amount of any payment owed to the victim and avoided . . . ." N.J.S.A. 2C:43-3e. A victim is one "who . . . incurs loss of . . . personal or real property as a result of a crime committed against that person . . . ." Ibid.

The "loss" common to all theft offenses is the value of property transferred without the consent of the victim. See In re Hoerst, 135 N.J. 98, 103 (1994) (quoting State v. Talley, 94 N.J. 385, 390-91 (1983), and reiterating the Court's discussion of the "essential nature" of the consolidated "theft" offenses, N.J.S.A. 2C:20-2). The victims of theft are those who have an interest in the property that the defendant is not entitled to infringe. N.J.S.A. 2C:20-1h (defining "property of another"); see N.J.S.A. 2C:20-9 (conviction does not require identification of the particular property as belonging to the victim at the time of the failure to make required disposition).

The State and the intended recipients of PNA benefits were victims of defendant's failure to make the required disposition. The State meets its responsibility to ensure that eligible residents of nursing homes have their monthly PNA reserved, N.J.S.A. 44:7-87, by paying a Medicaid recipient's full benefit to a nursing home, which must pay or preserve the PNA before using the remainder to cover the costs of care. N.J.A.C. 10:63-1.16(a). The State retains an interest in PNA; that interest is in proper payment of PNA to the intended recipients and return of unclaimed benefits, N.J.A.C. 10:63-1.16(f). The intended recipients have an interest in receipt of the PNA. Without consent of these victims, defendant appropriated PNA funds in the amount of $119,000 to a different use, and, as a consequence, funds were "separated" from the State and "owed" to the residents. Thus, the judge's finding of a loss of $119,000 is supported by the evidence and consistent with the statutory definitions. N.J.S.A. 2C:43-3e.

The judge properly rejected defendant's claim that she cannot be held responsible for restitution because Meadowview's accounts contained sufficient funds to pay the PNA owed when the bankruptcy trustee assumed control. Even defendant's expert was unable to identify the PNA funds defendant held as a fiduciary. For that reason, there is no evidence that the bankruptcy trustee could have known that the accounts included money that did not belong to Meadowview.

We also conclude that Judge Vazquez considered properly defendant's ability to pay $119,000 in restitution. A judge has "considerable discretion in evaluating a defendant's ability to pay." Newman, supra, 132 N.J. at 169. That "evaluation is necessarily imprecise because [the statute] contemplates an examination of the future ability to pay if the defendant currently does not have financial resources." Id. at 170. Here, the judge recognized defendant's inability to own and operate nursing homes as a result of this conviction but concluded that her education and experience would likely permit her to earn sufficient income to pay $119,000 from her earnings over a ten-year period. This finding is based on adequate evidence and entitled to deference. See Locurto, supra, 157 N.J. at 471-74; cf. State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div. 2001) (remanding for a hearing and findings on restitution).

Affirmed.

 

The judge also sentenced defendant to a three-year term and imposed the mandatory penalties and assessments. The sentence is consistent with the State's agreement to recommend a term appropriate for a crime of the third degree and defendant's subsequent admission to the Intensive Supervision Program (ISP), N.J.S.A. 2C:44-1f(2), h. Neither defendant nor the State filed the agreement, a transcript of the plea or sentence or the pre-sentence investigation report with this court. In her brief, defendant advises that she was admitted to ISP on October 18, 2005.

N.J.A.C. 10:63-1.16 was amended effective January 17, 2006 and is now codified as N.J.A.C. 8:85-1.16. We refer to the regulation in effect at the time of defendant's conviction and sentence.

(continued)

(continued)

9

A-0735-05T1

October 25, 2006