STATE OF NEW JERSEY v. FREDRIC FEIT
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4940-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FREDRIC FEIT,
Defendant-Appellant.
________________________________________________________________
Argued May 5, 2010 Decided May 19, 2010
Before Judges Fisher and Espinosa.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 06-09-00108.
Stephen M. Pascarella argued the cause for
appellant.
Lisa Sarnoff Gochman, Deputy Attorney
General, argued the cause for respondent
(Paula T. Dow, Attorney General, attorney;
Ms. Gochman, of counsel and on the brief).
PER CURIAM
Defendant is a physician who was indicted on two second-
2C:21-
degree counts of health care claims fraud, N.J.S.A.
4.3(a), alleging false claims totaling more than $520,000, and
one count of second-degree theft by deception, N.J.S.A. 2C:20-
4(a) and N.J.S.A. 2C:2-6. Pursuant to a plea agreement, he pled
guilty to a down-graded third-degree charge of theft by
deception, waived his right to a restitution hearing and agreed
to pay full restitution to the insurance companies. He does not
seek to withdraw his guilty plea. In this appeal, he asks that
this matter be remanded for a full plenary hearing on the issue
of restitution and that a fine of $15,000 be vacated. We
affirm.
The plea agreement here was memorialized in the standard
written plea form and can be summarized as follows. Both
second-degree health care claims fraud counts were to be
dismissed and defendant agreed to plead guilty to a single count
of theft by deception that was amended from a second-degree
charge to a third-degree charge. The prosecutor did not agree
to recommend any sentence. Paragraph 20 on page 3 of the form
inquired as to any additional promises made by defendant, the
prosecutor, defense counsel or anyone else. The following was
written in response: "Defendant understands that any licensing
questions will be handled by N.J. Board of Medical Examiners."
Defendant signed the plea form on page 3 and initialed a
handwritten addendum under his signature that reads "Defendant
waives restitution hearing and leaves decision to judge."
The transcript of defendant's guilty plea reflects that all
these terms were set forth on the record. At the outset, his
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attorney stated, "He understands that he's facing full
restitution here." The Deputy Attorney General added, "It's the
understanding of the State that the defendant will be waiving
his right to a restitution hearing in this case." Defense
counsel confirmed that this was correct.
At the plea hearing, defendant was directly questioned by
his counsel regarding the factual basis for his guilty plea and
the amount subject to restitution:
Q. And did you bill to health insurance
carriers for the paraspinal nerve block
procedure on patients without the benefit of
[fluoroscopic] guidance?
A. Yes, sir.
Q. [A]nd you admit that when you sent
these bills out you didn't do any
[fluoroscopic] guidance on these paraspinal
nerve blocks, is that correct?
A. Yes, sir.
Q. And you were paid by these insurance
companies for the billing submitted by your
practice, is that correct?
A. Yes, sir.
Q. Okay. And the aggregate amount of the
count that you're pleading guilty to was
between 500 and 75,000, is that correct?
A. Yes, sir.
Q. But you understand separate and apart,
that the restitution can be up to the full
amount of what was in the indictment, do you
understand that?
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A. Yes, sir.
In addition, the trial court questioned defendant about his
understanding of the terms of the plea agreement:
Q. [D]id you hear what the attorney said
about the terms of the plea agreement
between yourself and the State of New
Jersey?
A. Yes, sir.
Q. And did you understand it?
A. Yes, sir.
Q. And do you agree that what the attorney
said is accurate as to the complete terms of
the plea agreement between yourself and the
State?
Q. Yes, sir.
A. In fact, that plea agreement in its
entirety has been reduced to writing on
these two pages, pages 2 and 3, because if
you look at paragraph 12 and 13 on page [2],
and then if you look over at paragraph 20 on
page 3, as well as the very bottom of page
3, all the terms and conditions of the plea
agreement are set forth accurately in
writing on this particular form on those two
pages, do you agree?
A. Yes, sir.
By this last answer, defendant confirmed that the details of the
plea agreement summarized above accurately reflected his plea
agreement, including and specifically referencing the
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handwritten addendum under his signature, "Defendant waives
restitution hearing and leaves decision to judge."
At sentencing, the Deputy Attorney General specifically
noted that as part of the plea agreement, "[d]efendant has
waived his right to a restitution hearing and has agreed to make
full restitution to the insurance companies . . . in the amount
of over $581,000." No objection or questions were raised by
defendant about this statement. The only question raised was
that of the court regarding the mathematical calculation that
resulted in the amount sought by the State. The court's
calculation, based upon spreadsheets attached to the presentence
report, resulted in a lower amount, $578,978.12. Therefore,
before either defense counsel or defendant addressed the court
regarding the sentence to be imposed, the amount of restitution
was fully revealed in the presentence report and set forth on
the record. Yet, the defense took no exception to anything in
the presentence report or to the court's calculation. In
arguing for a non-custodial sentence, defense counsel referred
to the waiver of a restitution hearing:
We gave something away here also. That's
not to contest the amounts, not to contest .
. . the amounts. That was part of the
agreement, knowing that he has to do that.
A-4940-08T4
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In his allocution, defendant did not raise any questions
regarding the amount of the restitution he would be required to
pay.
In assessing the aggravating and mitigating factors
relevant to defendant's sentence, the court specifically found
N.J.S.A. 2C:44-1(b)(6) applicable based upon the defendant's
representation "that he will compensate the victims for the
damage or injuries sustained by making restitution." The court
found that the mitigating factors outweighed the aggravating
factors and sentenced defendant to probation for a period of
five years, a maximum statutory fine of $15,000, $50 VCCB
penalty, $75 Safe Neighborhood Assessment Fee and restitution in
the amount of $578,978.12, to be paid over the period of
probation at a minimum amount of $100,000 per year.
In this appeal, defendant raises the following
issues:
POINT I
DEFENDANT'S PLEA, WHILE VOLUNTARY, WAS
WITHOUT THE REQUISITE KNOWLEDGE OF ALL
CONSEQUENCES HE WAS FACING, INCLUDING, BUT
NOT LIMITED, TO HIS POSSIBLE LOSS OF MEDICAL
LICENSE, AS WELL AS THE IMPOSITION OF THE
RESTITUTION.
POINT II
DEFENDANT WAS ENTITLED TO A PLENARY HEARING,
FOLLOWING HIS GUILTY PLEA, ADDRESSING ALL
ISSUES.
A-4940-08T4
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POINT III
THE LOWER COURT'S IMPOSITION OF A $15,000.00
FINE WAS EXCESSIVE.
After carefully considering the record, briefs, and
arguments of counsel, we are satisfied that all of defendant's
arguments are without sufficient merit to warrant discussion in
a written opinion, R. 2:11-3(e)(2), beyond the following brief
comments.
We note that defendant does not challenge the right of the
court to require restitution on counts dismissed as part of the
plea agreement or argue that the court ordered restitution in an
amount he cannot afford to pay. When a defendant has pled
guilty pursuant to a plea agreement,
a sentencing court [may] order restitution
on crimes alleged in counts to which a
defendant has not pleaded guilty as long as
(1) there is a reasonable relationship
between the restitution and the defendant's
rehabilitation, and (2) there is a factual
underpinning supportive of the restitution.
[State v. Krueger,
241 N.J. Super. 244, 253
(App. Div. 1990) (citing State v. Bausch, 83
N.J. 425, 433-36 (1980)).]
Therefore, at the time of plea, a defendant must provide a
sufficient factual basis to "satisfy the court that he is aware
that he has victimized the would-be recipient[s] of the proposed
payments" and must be "advised on the record that he may be
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ordered to make restitution on counts to which he does not plead
guilty." Krueger, supra,
241 N.J. Super. at 254.
The record demonstrates that defendant was adequately
advised that he agreed to make restitution up to the amount
alleged in the indictment, including the counts dismissed, as
part of the plea agreement. Defendant did question the amount
of the restitution sought at the time of his plea. The trial
court set forth the precise amount of restitution it had
calculated based upon spreadsheets attached to the presentence
report before defense counsel's argument and defendant's
allocution. Defendant did not take any exceptions to the
presentence report or the amount calculated by the court prior
to the imposition of sentence. Even now, he has not identified
any sum that is not properly included as the fruits of the
offenses charged. We therefore conclude that his claims that he
was not provided with adequate information about restitution at
the time of plea and is now entitled to a full plenary hearing
lack merit.
Affirmed.
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