People v Shnayder

[*1] People v Shnayder 2006 NY Slip Op 50192(U) [11 Misc 3d 1053(A)] Decided on February 10, 2006 Supreme Court, Kings County Collini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Rafail Shnayder, ALEXANDER GOLDBERG, ELEANOR LEVYKH, and MARK BEREZOVSKY, Defendants.



6392-2004

Robert J. Collini, J.

The defendants move for a re-inspection of the grand jury minutes, seeking dismissal of the instant indictment, challenging the legal sufficiency of the evidence presented, the propriety of the legal instructions provided and the manner of the presentation.[FN1]

The court grants defendants' motions, insofar as they seek an in-camera inspection of the grand jury minutes, yet denies the motions to the extent they seek disclosure of those minutes to the defendants, as the determination of the instant motions does not require such a disclosure (CPL 190.25[4][a]; 210.30[3] and [5]; Brown v Rotker, 215 AD2d 378 [2d Dept 1995], lv denied 86 NY2d 706; see also Brown v LaTorella, 229 AD2d 391 [2d Dept 1996]).

This case contains allegations of an ongoing conspiracy among the defendants to process fraudulent medicaid claims.[FN2] Each of the defendants is charged with Conspiracy in the fifth degree.[FN3] Defendants Shnayder and Levykh are also charged with one count of Grand Larceny in the third degree.[FN4] Defendants Shnayder, Levykh and Goldberg are also charged with two separate and distinct counts of Unauthorized practice of a profession (medicine).[FN5] Defendant Berezovsky is charged with one count of Unauthorized practice of medicine (message).[FN6] Defendant Shnayder is also charged with thirty-one counts of Offering a false instrument for [*2]filing in the first degree.[FN7]

With respect to the defendants' claims that the legal instructions provided by the prosecutor were inadequate, this court recognizes that a grand jury need not be instructed with the same degree of precision as a petit jury (People v Valles, 62 NY2d 36, 38; People v Calbud, 49 NY2d 389, 394). The legal instructions provided by the assistant attorney general in this case were adequate and complete and do not form a basis for dismissing the indictment (CPL 190.25[6]).[FN8]

In consideration of a motion to dismiss an indictment pursuant to CPL 210.20(1)(b), the relevant inquiry concerns the legal sufficiency of the evidence, not the weight or adequacy of the proof presented (People v Galatro, 84 NY2d 160, 164). Legally sufficient evidence is competent evidence which, if accepted as true, would establish the defendant's commission of each and every element of each offense charged (CPL 70.10[1]; People v Jensen, 86 NY2d 248, 252; People v Jennings, 69 NY2d 103, 114 -116). In the context of the grand jury procedure, this means proof of a prima facie case, not proof beyond a reasonable doubt (People v Gordon, 88 NY2d 92, 95-96; People v Mikuszewski, 73 NY2d 407, 411). Moreover, in its evaluation of the sufficiency of the evidence, the reviewing court must determine whether the evidence, when viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (People v Swamp, 84 NY2d 725, 730; People v Pelchat, 62 NY2d 97, 105).

Defendants assert that the indictment fails to provide sufficient facts to support every element of the offenses charged or to apprise the defendants that their conduct was unauthorized. The defendants further contend that the indictment fails to provide the name of the unlicenced coconspirator, the names of the patients that were allegedly involved, the acts committed by the unlicenced coconspirator in furtherance of the conspiracy, proof of each defendant's criminal intent, and proof that the defendants acted in concert.

CONSPIRACY

Defendants claim the conspiracy count fails to specify what acts each defendant did in order to enable the conspiracy. They contend the attorney general must have presented evidence before the grand jury which proves that each individual defendant had the necessary mens rea to commit certain crimes, that the defendants entered into an agreement to engage in certain criminal conduct, that the defendants agreed to commit certain acts in furtherance of the conspiracy and that at least one of the coconspirators performed at least one overt act in [*3]furtherance of the conspiracy.[FN9]

The indictment clearly sets forth thirty-six overt acts committed by each of the original six defendants in furtherance of the conspiracy. Defendant Shnayder is charged with eighteen overt acts in furtherance of the conspiracy, most of which accuse him of signing medical charts and superbills.[FN10] These allegations highlight testimony that was presented to the grand jury in support of the charges presented. Defendant Goldberg is charged with three overt acts stemming from medical charts he signed on September 17, 2001, November 28, 2001, and on August 14, 2002. Defendant Levykh is charged with two overt acts, stemming from her tape recorded conversation with an accomplice in which she displayed her knowledge of and participation in the conspiracy and in which she attempted to tailor the future testimony of the accomplice. Defendant Berezovsky is charged with one overt act, for performing a massage on June 2, 2003.[FN11]

The attorney general has provided legally sufficient evidence to prove, not only the specific criminal acts of each defendant, but to establish, at least circumstantially, the necessary mens rea against each defendant.

In addition to the foregoing, the attorney general also presented the written statement of co-defendant Tatiana Zagoruychenko, which directly implicates defendants Shnayder and Levykh in a conspiracy to "scam" Medicaid. There was also evidence that defendants Shnayder and Levykh, knowing that an accomplice had been approached by government authorities, each tried to persuade said accomplice to fabricate testimony in order to avoid implicating the defendants or the medical clinic.

Evidence was also presented that defendant Goldberg told an investigator for the attorney general that he started the medical business in 1997, but, as the business started to pick up, he was unable to see all the patients himself and permitted his medical assistants to treat them.[FN12] In that same interview, defendant Goldberg admitted that he knew that two of his medical assistants were unlicenced while they were working for him (see People v Corines, 308 AD2d 457 [2d Dept 2003], affd sub nom People v Santi, 3 NY3d 234 [evidence at trial demonstrated that defendant physician knew that co-defendant was a suspended doctor yet he aided and abetted her in her unlicensed practice of medicine]). Defendant Goldberg was also implicated by both of the medical assistants, who stated that defendant Goldberg knew they weren't licensed to practice medicine in New York, [*4]yet permitted them to treat patients and write prescriptions. Although normally an admission by one defendant is not binding upon and may not be used against another defendant, the rule is somewhat different with respect to conspiracy. Where two or more persons have entered into an illicit agreement to commit a crime, each of them to some extent may be deemed to speak as an agent for the others with respect to statements made in furtherance of and in the course of that conspiracy. Thus, once a prima facie case of conspiracy has been made out, such statements are admissible against each coconspirator. For similar reasons, once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy ... although the mere fact that one is a coconspirator does not in and of itself support the imputation of criminal liability for the object crime.

(People v Berkowitz, 50 NY2d 333, 341)(citations omitted).

For purposes of assessing the legal sufficiency of the grand jury minutes, the evidence presented to the grand jury was legally sufficient to establish each and every charge of the indictment, including the count of Conspiracy in the fifth degree.[FN13]

ACCOMPLICE TESTIMONY

Defendants' also contend that the indictment must be dismissed, pursuant to CPL 60.22, because the charges are based on the uncorroborated testimony of a co-conspirator who eventually began cooperating with the police.

Pursuant to CPL 60.22: (1) A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.(2) An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:(a) The offense charged; or(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.

As stated in People v Cona (49 NY2d 26): The accomplice corroboration rule [CPL 60.22] is premised upon a legislative determination that the testimony of individuals who may themselves be criminally liable is inherently suspect. This is deemed to be true because such individuals may be subject to pressures impelling them to color testimony in order to protect themselves by [*5]belittling the actual extent of their involvement in the criminal enterprise at the expense of others. In a similar vein, a person who agrees to turn State's evidence may believe it to be in his best interests to embellish the truth when testifying about the defendants in order to secure the approval of officials who have the authority to prosecute the accomplice should they not be satisfied with his cooperation. In short, the accomplice corroboration rule entails a legislative recognition that, as a result of these various pressures, both real and imagined, to which an informant may be subject, such testimony is somewhat suspect.

(id. at 35-36)(citations omitted)(bracketed portion added).

The purpose of the accomplice corroboration rule is "to protect the defendant against the risk of a motivated fabrication, to insist on proof other than that alone which originates from a possibly unreliable or self-interested accomplice" (People v Dory, 59 NY2d 121, 128).

As stated earlier, defendants contend the indictment must be dismissed because the testimony of the accomplice was not sufficiently corroborated in the grand jury.[FN14]

"Although corroborative evidence must be truly independent, and may not draw its probative value from the accomplice testimony, it need not itself prove commission of the crime. Rather it is sufficient if the corroborative evidence tends to connect the defendant to the crime so as to reasonably satisfy the jury that the accomplice is telling the truth (Dory, 59 NY2d at 128) (see also Cona, 49 NY2d at 37 ["We require only that the evidence thereby produced be supported by corroborative evidence tending to connect the defendant with the commission of the crime"]).

A close examination of the grand jury minutes establishes corroborative evidence tending to connect each of the defendants with the commission of the offenses charged. As stated earlier, defendants Shnayder and Levykh were further implicated by the written statement of co-defendant Zagoruychenko. Defendant Goldberg implicated himself in his statement to the attorney general's investigator. Defendant Berezovsky was implicated by his patients and by evidence that he was not licenced to practice as a massage therapist.

Accordingly, the testimony of the accomplice was sufficiently corroborated, tending to connect each of the defendants to the offenses charged.[FN15]

DUPLICITOUS COUNTS

Defendants further contend that the charges of Unauthorized practice of medicine must be dismissed, because each count violates CPL 200.30 (1). [*6]

CPL 200.30 (1) provides: "Each count of an indictment may charge one offense only."

"The purpose of this section is to limit each accusation in an indictment to an allegation of a single offense. The indictment as a whole may accuse a defendant of as many offenses as can be joined therein pursuant to CPL 200.20; but each offense must be alleged in a separate accusation, known as a count', and each count must be limited to allegation of a single offense. A count that accuses a defendant of more than one offense is called duplicitous'" (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 200.30, at 437). Duplicitous counts of an indictment are defective under CPL 210.25 (1) and are subject to dismissal pursuant to CPL 210.20 (1)(a).

The test of whether a count in an indictment is duplicitous is, "[c]ould the defendant under it be convicted of either one of the crimes charged therein, should the district attorney elect to waive the other?" (People v Knipfel, 160 NY 371, 374, cited in People v Davis, 72 NY2d 32, 38, and People v Keindl, 68 NY2d 410, 417; see also People v Branch, 73 AD2d 230, 234 [2d Dept 1980]; People v Medinas, 180 Misc 2d 251, 261 [Sup Ct, Kings County 1999]).

Count three of the indictment charges the defendants Shnayder and Tovbina with Unauthorized practice of a medical profession (medicine). The indictment states that the defendants: acting in concert, from on or about November 22, 2001 to on or about May 17, 2004, in the County of Kings, State of New York, aided and abetted another person not authorized to practice medicine in New York State under Title VIII of the Education Law to practice and offer to practice and hold himself out as being able to practice the profession of medicine by aiding and abetting that person to diagnose, treat and prescribe for a human disease.

Count six of the indictment charges defendant Shnayder in a similar fashion, with two noted exceptions: (1) the dates are changed to "on or about December 17, 2001 to on or about May 17, 2004"; and (2) the accomplice to whom the defendant is alleged to have assisted to hold herself out to be as authorized to practice medicine is named as the defendant Zagoruychenko.

Count four of the indictment charges defendant Levykh in a similar fashion to count three, only the dates for this defendant's crimes are said to be "on or about May 30, 2001 to on or about May 11, 2004."

Count nine of the indictment charges defendant Levykh in a similar fashion, with two noted exceptions: (1) the dates are changed to "on or about September 17, 2001 to on or about May 17, 2002"; and (2) the accomplice to whom the defendant is alleged to have assisted is described only as a female.

Counts seven and eight each charge the defendant Goldberg similar to the language contained in count three, except that count seven has the date of the offenses as "on or about September 17, 2001 to on or about January 1, 2002", while count eight lists the dates as "on or about May 30, 2001 to on or about January 1, 2002." [*7]

Count five charges the defendant Berezovsky as follows: The defendant, Mark Berezovsky, from on or about January 1, 2000 to on or about May 25, 2004, in the County of Kings, State of New York, did practice massage therapy and is not authorized to practice massage therapy in New York State under Title VIII of the Education Law to practice and offer to practice and hold himself out as being able to practice the profession of massage therapy.[FN16]

Since the indictment is silent as to what specific criminal acts the defendants are alleged to have committed, and since the bill of particulars does not provide any clarification in this respect, the court is compelled to look back at what the grand jury considered when the assistant attorney general instructed that body.

However, upon examining the grand jury minutes, the court notes that the grand jurors were only charged with the statutory language contained on the indictment. No further explanation was provided to the grand jury to specify what specific testimony they were to consider for each of the unauthorized practice of a profession counts. The assistant attorney general began presenting testimony on September 22, 2004, and finally charged the grand jury on February 16, 2005.[FN17]

The defense contends the indictment is duplicitous and must be dismissed because each time an unauthorized person held him or herself out to be a doctor, or massage therapist, a separate and distinct illegal act occurred and the defendants were entitled to be charged via separate counts. Therefore, since this wasn't done, and these counts of the indictment contain multiple acts of misconduct, they contend it must be dismissed as duplicitous. The assistant attorney general, in opposition, maintains that the ongoing criminal conduct of each of the defendants constituted acts that could be charged as part of a continuous crime and, therefore, those counts of the indictment are not duplicitous.

At issue is whether the crime of unauthorized practice of a profession is a continuous crime.

"Where, however, a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the indictment may charge the continuing offense in a single count" (People v First Meridian Planning Corp., 86 NY2d 608, 615-616). In other words, a " continuing crime is one that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time'" (People v Shack, 86 NY2d 529, 540, quoting People v Keindl, 68 NY2d 410, 421). "Whether multiple acts may be [*8]charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definitions of the crime necessarily contemplates a single act ... Guidance is also obtained from analysis of whether the legislature intended to prohibit a course of conduct or only specific, discreet acts" (Shack, 86 NY2d at 540-541, citing People v Okafore, 72 NY2d 81, 86-87)(other citations omitted).

"Ascertaining whether a crime is continuous or not is often difficult to determine because there appears to be three separate categories of crimes" (People v Minton, 170 Misc 2d 272, 273 [Crim Ct, Bronx County 1996]).[FN18]

As stated in People v Brown (159 Misc 2d 11 [Sup Ct, Kings County 1993]):[FN19] The first category is those crimes which are, as a matter of law, always continuous. These crimes have an element which by their very nature require a course of conduct or several acts or omissions over a period of time ... The second category is crimes which are, as a matter of law, noncontinuous. These crimes have an element which by their nature are complete upon a single act or omission ... The third category is a hybrid. The crimes are sometimes continuous and sometimes not continuous. The crimes have an element that sometimes can be committed by a single act or omission or by several different acts or omissions over a period of time ... In determining into which category a crime falls, an examination is necessary of legislative intent ... and the nature of the crime.

(id. at 16-17)(citations omitted).

The determination as to whether Education Law 6512(1) constitutes a continuous crime was directly addressed by Justice Bamberger in People v Sher (149 Misc 2d 194 [Sup Ct, Bronx County 1990]). In Sher, the named defendant, a licensed physician, was charged with aiding and abetting the unauthorized practice of medicine by a co-defendant. The defense moved to dismiss the indictment on the grounds that the charge was duplicitous, in violation of CPL 200.30(1). After an extensive review of the common law and the legislative history behind the enacting of Education Law 6512, my esteemed colleague concluded that "the unauthorized practice of medicine is not a continuing offense and that the count, which charged that the offense occurred repeatedly during a period of over three [*9]years, includes more than one offense and is duplicitous" (id. at 199).[FN20]

Had Sher been the only case on point, this court may have found the arguments presented to be persuasive. However, the prevailing legal precedent in this judicial department requires this court to rule otherwise.

"In any prosecution under NY Title VIII of the Education Law it is necessary to prove only a single prohibited act or a single holding out, without providing a general course of conduct. It has been observed, however, that the plain language of the statute prohibiting unauthorized practice contemplates a continuing crime as well as a single act" (13 NY Jur 20 Businesses and Occupations 111, citing People v Rosich, 170 AD2d 703 [2d Department 1991], lv den 77 NY2d 1000). In Rosich, a podiatrist was charged with grand larceny and aiding and abetting the unlawful practice of a profession.[FN21] On appeal, the defendant contended that the counts charging him with grand larceny and aiding and abetting the unlawful practice of a profession should have been dismissed as duplicitous in that each of those counts alleged a series of offenses over a period of time [FN22]. The Second Department disagreed. The court held that the defendant was properly charged with these offenses under a continuing crime theory: It is well established that grand larceny may be charged as a series of single larcenies governed by a common fraudulent scheme or plan even though the successive takings extended over a long period of time ... Furthermore, we find that the plain language of Education Law § 6512 contemplates a continuing crime as well as a single act ... Nor can it be said that the counts as charged impaired the defendant's ability to prepare a defense or impaired his ability to raise the constitutional bar of double jeopardy against any future prosecutions arising from the same course of conduct.

(id. at 704 - 705)(citations omitted).

This court is bound by the doctrine of stare decisis. It is the policy of the Supreme Court at the trial level to stand by judicial precedent and to adhere to the principles laid down by the Court of Appeals. When the Court of Appeals has not established a precedent on an issue, this court must adhere to the rules of law set forth by the Appellate Division, Second Judicial Department (Zecca v Riccardelli, 2001 NY Slip Op 40032 [Sup Ct, Richmond County, May 14, 2001]). The [*10]doctrine of stare decisis requires courts of original jurisdiction to follow the decisions and precedents of the Appellate Division, which have jurisdiction of both law and fact (City of New York v Scott, 178 Misc 2d 836, 842-843 [Civ Ct, Bronx County 1998]). Accordingly, this court is not "free to fashion a decision which it deems to be appropriate and consistent with the overall objectives sought to be achieved by the applicable statute" (In re Daniel, 181 Misc 2d 941, 952 [Civ Ct, Bronx County 1999]).

Since the Second Department has determined that Education Law 6512 can be charged as either a single act offense or as a continuous crime, it becomes apparent that this case was presented under that theory. Since the indictment charges the defendant with a continuous crime offense, CPL 200.30(1)'s prohibition against duplicitous counts does not apply and the defendants' motions, to dismiss those counts of the indictment charging the defendants with Unauthorized practice of a profession, must be denied.[FN23]

EXEMPT PERSON DEFENSE

Defendant Berezovsky also moves to dismiss that count of the indictment which charges him with Unauthorized practice of a profession (massage), claiming to be an exempt person under Education Law 7805.

Defendant is charged under Education Law 6512(1): Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts, or who practices any profession as an exempt person during the time when his professional license is suspended, revoked or annulled, or who aids or abets an unlicenced person to practice a profession ... shall be guilty of a class E felony.As charged here, Education Law 6512(1) prohibits, by its express language, anyone from "practic[ing] or offer[ing] to practice or hold[ing] himself as being able to practice" an unlicensed profession, including massage therapy (Education Law 7802) ... [T]he "extraordinarily expansive definition" of the foregoing statute "manifests a legislative intent to proscribe all aspects of the unlicensed practice of any regulated profession"

(People v Carrabotta, 2 Misc 3d 685, 689 [Crim Ct, Queens County 2003], quoting People v Lupinos, 176 Misc 2d 852, 855 [Crim Ct, Richmond County 1998]).

Defendant Berezovsky claims the statute prohibits the unauthorized practice [*11]of a profession, not merely the unlicenced practice of a profession.[FN24] According to this argument, pursuant to Education Law 705, certain individuals who do not have a license to practice a profession, are, nevertheless, "authorized" to practice a profession, as an "exempt person", provided the individual has not had his or her professional license "suspended, revoked or annulled." Since defendant Berezovsky has never obtained a license with which to practice massage therapy, defendant claims he qualifies to lawfully practice a profession as an "exempt person" because he has never had a license to suspend, revoke or annul.

In addition, Education Law 7805 provides: Nothing contained in this article shall be construed to prohibit:(1) The practice of massage therapy by any person who is authorized to practice medicine ... in accordance with the terms of this title.

..... (3) The practice of massage therapy by any person employed in a medical institution licensed or chartered by the state of New York, provided that such person is under the on-site supervision of a person licensed to practice massage therapy or authorized to practice massage therapy by subdivision one of this section.

Defendant Berezovsky asserts that although he performed unlicenced massage therapy, he did so under the on-site supervision of several individuals who were authorized to practice medicine, thereby exempting him from prosecution under the statute.[FN25] He further asserts that individuals working at a Public Health Law Article 28 facility supervised by licensed individuals are protected from prosecution under the Education Law.

In opposition, the assistant attorney general argues that as a matter of pleading, the defendant's argument is factual and must be raised and litigated at trial. The attorney general further argues that Midwood Family Doctor P.L.L.C., which is a limited liability company, is not a "medical institution" as defined in Education Law 7805(3) and the defendant is not entitled to rely on the exception provided in that subdivision, since medical institutions are defined in the statute as either hospitals, diagnostic and treatment centers, or a similar facility chartered under Article 28 of the Public Heath Law.[FN26]

Whether the defendant Berezovsky is an exempt person is a factual issue [*12]that will, ultimately, be determined by the trier of fact.

Furthermore, the attorney general was not required to present this issue before the grand jury since counsel's claim is not a defense recognized by statute but is an assertion designed to create a reasonable doubt.

The Penal Law of this State sets forth certain ordinary and affirmative defenses. An ordinary defense, such as infancy [FN27] and justification [FN28] requires the prosecutor to disprove such defense beyond a reasonable doubt (PL 25.00[1]). An affirmative defense, such as duress [FN29], entrapment [FN30], renunciation [FN31], insanity [FN32], extreme emotional disturbance [FN33], and lack of culpability to commit felony murder [FN34], requires proof by a mere preponderance of the evidence (PL 25.00[2]).

Before one of these defenses can be charged to a grand jury, "the evidence must establish that defense, requiring more from a defendant than a mere allegation" (People v Mitchell, 82 NY2d 509, 514-515). The defendant has the burden of putting into issue both "defenses" and "affirmative defenses" (U.S. ex rel. Corozzo v Attorney General of State of NY, 475 F Supp 707, 710 n 2 [US Dist Ct, EDNY 1979]). "The burden of proof for all affirmative defenses lies squarely with the defendant [FN35] ... Affirmative defenses need be proven only by a preponderance of the evidence [whereas] elements must be proven beyond a reasonable doubt [FN36] ... [U]nless the defendant asserts the affirmative defense, the State need not negate it to obtain a conviction; it is not one of the facts upon which criminal liability is predicated. Proof of an affirmative defense lies squarely with the defendant (Aparicio v Artuz, 269 F3d 78, 98 [2d Cir 2001]).

Defendant Berezovsky's claim, that he is exempt from prosecution because he was authorized to practice under the supervision of other individuals, is, in comparison to the defenses detailed above, a factual defense that must be raised at trial (Dillon v Kim, 158 Misc 2d 711, 716 [Sup Ct, Nassau County 1993]; People v [*13]Rubin, 103 Misc 2d 227, 234 [Crim Ct, Queens County 1979]).

Accordingly, defendant Berezovsky's motion, to dismiss that count of the indictment charging him under Education Law 6512(1), is denied.

WITHDRAWAL/RENUNCIATION

Defendant Goldberg contends that the misdemeanor charge of conspiracy is time barred, and must be dismissed, because he allegedly withdrew from the conspiracy more than two years prior to the statute of limitations period (CPL 30.10[2][c]; People v Spevack, 253 AD 683 [1st Dept 1938]).[FN37]

Prosecution for conspiracy in the fifth degree is subject to a two year statute of limitations (CPL 30.10[2][c]) which runs from the date of the last overt act (Fiswick v United States, 329 US 211, 216). To convict a defendant, the prosecution must prove that the conspiracy existed and that the defendant was a member of the conspiracy at some point in the two years preceding the date of the indictment (Grunewald v United States, 353 US 391, 396; United States v Borelli, 336 F2d 376, 389 [2d Cir 1964], cert denied 379 US 960).

"[T]he overt acts of any conspirator may be attributed to other conspirators to establish the offense of conspiracy" (People v Leisner, 73 NY2d 140, 149; People v McGee, 49 NY2d 48, 57). "The acts and declarations of any conspirator may be used against the others once a prima facie conspiracy case has been established" (Leisner, 73 NY2d at 149; People v Salko, 47 NY2d 230, 237-238; People v Rastelli, 37 NY2d 240, 244).

Renunciation is an affirmative defense, set forth in the Penal Law, requiring a demonstration by the defense that a "substantial effort" was made to "prevent the commission" of a conspiratorial plan (PL 40.10[1][FN38]; People v Ozarowski, 38 NY2d 481, 492). "Renunciation does not negate the commission of the inchoate crime" (People v Johnston, 87 AD2d 703, 704 [3d Dept 1982]) "but rather offers those guilty of such crimes an incentive to take steps to prevent the object or substantive crime, in exchange for which the defendant is excused from liability" (People v Sisselman, 147 AD2d 261, 263 [3d Dept 1989] lv denied 74 NY2d 819; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 40.10, at 137). "Renunciation requires more than merely withdrawal from a conspiracy. It is an affirmative defense, and there must be a demonstration, inter alia, that a substantial effort' was made to prevent the commission' of the conspiratorial plan" (People v Ozarowski, 38 NY2d 481, 492; People v De Los Angeles, 270 AD2d 196, 204 [1st Dept 2000] lv denied 95 NY2d 889, quoting PL 40.10[1]).

"To warrant a charge on renunciation, it must be established by defendant that he withdrew from participation in the offense prior to the commission thereof and made a substantial effort to prevent its commission" (People v Tayeh, 96 AD2d 1045, 1047 [2d Dept 1983] citing Ozarowski, 38 NY2d at 492). To qualify for this defense, "the abandonment must [*14]be permanent, not temporary or contingent, not simply a decision to postpone the criminal conduct until another time" (People v Taylor, 80 NY2d 1, 13-14; see also People v Acosta, 80 NY2d 665,674).

Defendant makes clear in his reply papers that he is not putting forth a renunciation defense but is relying on a defense of withdrawal. However, in "New York State, withdrawal from a conspiracy is not a defense" (People v De Los Angeles, 270 AD2d 196, 204 [1st Dept 2000][Rosenberger, J.P., dissenting], lv denied 95 NY2d 889).

Contrary to the limited case law cited above, defendant claims withdrawal is a complete defense only when the statute of limitations expires after the defendant has made clear to his co-conspirators that he is no longer a member of the conspiracy.[FN39] Defendant asserts his act of leaving the Midwood clinic prior to 2003 constituted an unmistakable announcement that he was no longer part of the conspiracy.[FN40]

In accordance with federal law, withdrawal marks a conspirator's disavowal or abandonment of the conspiratorial agreement (Hyde v United States, 225 US 347, 369).[FN41] A defendant who fails to abandon a conspiracy will continue to be held liable for the conduct conducted in furtherance of the conspiracy because "as he has started evil forces, he must withdraw his support from them or incur the guilt of their continuance" (id. at 369-370). After a defendant withdraws from a conspiracy, he is no longer a member of the conspiracy and the later acts of the conspirators do not bind him (United States v Reed, 658 F2d 1225, 1232 [7th Cir 1981]). The defendant is still liable, however, for his previous agreement and for the previous acts of his co-conspirators in pursuit of the conspiracy (United States v Hickey, 360 F2d 127, 140 [7th Cir 1966]). Once a defendant has clearly cut his ties to the conspiracy and communicated his withdrawal from such conspiracy to his co-conspirators, the statute of limitations begins to toll against that defendant, notwithstanding that other members of the conspiracy may continue to seek the ends of the original agreement (United States v Arias, 431 F3d 1327,1340 [11th Cir 2005]).

Withdrawal is not, therefore, a complete defense to the crime of conspiracy (United States v Read, 658 F2d 1225, 1233 [7th Cir 1981]). Withdrawal becomes a complete defense only when coupled with the expiration of the statute of limitations (id.). A defendant's withdrawal from the conspiracy starts the running of the statute of limitations as to him (id.). If the indictment is filed more than the relative statute of limitations period after a defendant effectively withdraws from the conspiracy, the statute bars prosecution for the defendant's actual participation in the conspiracy (id.). Withdrawal directly negates the element of membership in the conspiracy during the period of the statute of limitations (id.).

In this case, should the defendant meet his burden of proving that he had effectively communicated his withdrawal from the conspiracy, he could not be held liable for acts or declarations committed in the two years preceding the indictment by other conspirators (id.; United States v Borelli, 336 F2d 376, 388 [2d Cir 1964]).

The burden of establishing withdrawal from a conspiracy lies with the defendant (United [*15]States v Dorn, 561 F2d 1252, 1256 [7th Cir 1977]). The defendant's burden is to go forward with evidence of withdrawal and with evidence that he withdrew prior to the statute of limitations. Once the defendant advances sufficient evidence to support his claim, the burden of persuasion is on the prosecution to disprove the defense of withdrawal beyond a reasonable doubt (United States v Lothian, 976 F2d 1257, 1261 [9th Cir 1992]; United States v Steele, 685 F2d 793, 804 [3d Cir 1982] cert denied 459 US 908; Read, 658 F2d at 1236).[FN42]

Once engaged in a conspiracy, an accused conspirator's participation is presumed to have continued until all objects of the conspiracy have been accomplished or until the last overt act has been committed by any of the conspirators (Arias, 431 F3d at 1340; United States v Reed, 980 F2d 1568, 1583 [11th Cir 1993]). A defendant's participation in a continuing conspiracy is presumed to continue absent some affirmative conduct evidencing the defendant's abandonment of the conspiratorial objectives (Hyde, 225 US at 369).

If a conspirator establishes the affirmative defense of withdrawal, the statute of limitations will begin to run at the time of withdrawal (Arias, 431 F3d at 1340; Reed, 980 F2d at 1584). Otherwise, the statute will not begin to run until the final act of the conspiracy has occurred (Arias, 431 F3d at 1340; Reed, 980 F2d at 1584).

In the case before this court, the defendant Goldberg moved to dismiss the conspiracy count of the indictment, pursuant to CPL 210.20 (1)(f), based on the alleged untimeliness of the prosecution, in violation of CPL 30.10 (2)(c).

Pursuant to CPL 210.45 (1), a motion to dismiss, made pursuant to CPL 210.20, must be made in writing and must contain sworn allegations of fact in support of the motion. The statute also permits the defendant to submit documentary evidence in support, or in lieu of, his sworn factual allegations. In this case, defendant's moving papers lack any sworn allegations of fact in support of counsel's legal assertion that the defendant withdrew from the conspiracy two years prior to the filing of the indictment.[FN43] No documentary evidence was set forth to substantiate counsel's claims.[FN44]

Accordingly, pursuant to CPL 210.45 (5)(b), this court summarily denies defendant's motion to dismiss, since the motion is based upon the occurrence of facts and the moving papers do not contain sworn allegations supporting all of the essential facts.[FN45]

[*16]HUNTLEY HEARINGDefendant Levykh's motion for a Huntley [FN46] hearing, to determine whether any statements she made after May 21, 2005, were made in violation of her constitutional right to counsel [FN47], is granted.[FN48]

RUSSIAN INTERPRETER

Defendant Levykh's motion for an order, seeking the employment of a Russian interpreter, pursuant to County Law Article 18-b, in order to assist the defense in transcribing the covert tape recordings turned over by the assistant attorney general, is denied. The defendant was the office manager of the medical practice that is the subject of the charges contained in this indictment. She has retained a private attorney to represent her in this matter. Defendant has failed to demonstrate, as part of this written application or upon the oral in-court pleas of her attorney, that she is eligible to have the taxpayers of this State pay for this aspect of her legal defense (County Law 722-c).[FN49]

AUDIBILITY HEARING

Defendant Levykh also moves for an audibility hearing, claiming that the court should determine whether the transcribed statements provided to the defense, which may be distributed to the jury, were accurately transcribed from the original Russian recording.

The presence of a foreign language on a recorded tape does not, in and of itself, render the recording inaudible (People v Tabora, 139 AD2d 540 [2d Dept 1988], lv denied 72 NY2d 925; People v Pagan, 80 AD2d 924 [2d Dept 1981]). The defendants have set forth no factual basis to challenge the audibility of any of the tapes nor the accuracy of the translation. Counsel apparently wants this court to conduct an expensive and lengthy pre-trial hearing which would translate and transcribe each of the covertly recorded tapes. The assistant attorney general, in opposition, claims that she is not seeking to introduce into evidence all of the original covert tapes and that those tapes that she seeks to introduce at trial have already been transcribed into English and turned over to the defense and that in the absence of any good cause there is no reason to re-translate all the recordings.[FN50]

The defendants' motion to dismiss the indictment [FN51], premised upon the alleged impairment of the integrity of the grand jury proceedings [FN52], as the result of the attorney general's submission of summaries of translated conversations between and among co-conspirators, which defendants' claim constituted the admission of prejudicial hearsay [FN53], is denied. Four Russian to English transcribed manuscripts were submitted to the grand jury.[FN54] Each was translated by a witness who was declared an expert in the field of Russian and English translation.[FN55] Portions of three of the four exhibits were read into the record.[FN56] The translator would note when a door was making a noise or when a telephone would ring in the background, but the exhibits read into the record contained no summaries of statements.

Nevertheless, this court hereby orders the assistant attorney general to produce before this court, on or before March 10, 2006, grand jury exhibits 31, 32, 48 and 49, and any other transcripts that they may seek to introduce into evidence at the trial of this matter. The assistant is also to produce, for this court, grand jury exhibits 23, 24, 25 and 26, the original Russian tapes, for examination and transcription by the defense.[FN57]

CONCLUSIONS

Based upon an in-camera review of the grand jury minutes, this court finds that the competent evidence presented, when viewed in the light most favorable to the People, if unexplained and uncontradicted, was legally sufficient to establish the defendants' commission of all the elements of the crimes charged.

In addition, the grand jury proceedings were conducted in conformity with the requirements of Article 190 of the Criminal Procedure Law.

In summary, the defendants' applications seeking dismissal or reduction of the counts charged in the instant indictment are hereby denied.

This constitutes the decision, opinion and order of the court.

________________________

JSC

Dated: February 10, 2006

Brooklyn, New York Footnotes

Footnote 1:Prior to the filing of defense motions, this court rendered a written decision, dated April 12, 2005, upholding the grand jury minutes and denying the defendants anticipated motions to inspect and dismiss. This court agreed to re-inspect the grand jury minutes in light of the legal arguments presented, in writing, by counsel.

Footnote 2:Two additional defendants, Inna Tovbina and Tatiana Zagoruychenko, were also named on the current indictment but have not joined in the motions of the four defendants named herein.

Footnote 3:Penal Law 105.35, a class A misdemeanor.

Footnote 4:PL 155.35, a class D non-violent felony.

Footnote 5:Education Law 6512(1), a class E non-violent felony. Defendant Shnayder is charged under counts 3 and 6 of the indictment; defendant Levykh is charged under counts 4 and 9; defendant Goldberg is charged under counts 7 and 8.

Footnote 6:Edu 6512(1), a class E non-violent felony.

Footnote 7:PL 175.35, a class E non-violent felony.

Footnote 8:The assistant attorney general properly charged the grand jury with respect to: unsworn evidence given by a witness, corroborating evidence, accomplice testimony and the requirement of corroboration, accomplice testimony as a matter of law, waiver of immunity, credibility, interested witness, circumstantial evidence, acting in concert, and provided legal definitions for public servant, conduct and intentionally.

Footnote 9:People v Berkowitz, 50 NY2d 333.

Footnote 10:Bills submitted to Medicaid for reimbursement.

Footnote 11:While the evidence against this defendant is legally sufficient, as defined herein, proving the case beyond a reasonable doubt may be a more difficult hurdle for the attorney general.

Footnote 12:Compare People v Mayer, 1 AD3d 459 (2d Dept 2003)[no proof that licensed physician was aware of participation by co-defendant with a revoked license since procedures at issue were only conducted when defendant was not in the examination room].

Footnote 13:PL 105.05(1).

Footnote 14:Counsels' comments, while correct assertions of the law, are based, understandably, on speculation about what evidence was actually presented to the grand jury.

Footnote 15:CPL 60.22.

Footnote 16:The Attorney General's Bill of Particulars does not provide any specifications that would assist counsel in determining what specific acts underlie each of the Unauthorized practice of profession counts.

Footnote 17:Evidence was also presented on September 29th, October 6th and 27th, November 3rd, December 1st, 8th,15th and 22nd, January 5th, 12th and 26th, 2005, and on February 2nd, 2005.

Footnote 18:In Minton, the court ruled that cruelty to animals (Agriculture and Markets Law 353) is a continuous crime and denied counsel's motion to dismiss that charge of the criminal court information.

Footnote 19:The author of this informative decision is currently counsel to the defendant Levykh. In Brown, the court found that the usury statute (PL190.42) was a continuous crime and denied the defendant's motion to dismiss that count of the indictment as duplicitous. It should be noted that in the present case, defendant Levykh did not move to dismiss the indictment under the theory that the counts charging Unauthorized practice of a profession were duplicitous.

Footnote 20:Justice Bamberger's decision in Sher was not appealed by the attorney general. No appellate court decision has cited Sher, one way or the other, with respect to a continuous crime analysis. Had the Second Department not ruled in People v Rosich (170 AD2d 703) that Education Law 6512 can be charged as a continuing crime, this court would have accepted the court's analysis in Sher and granted the defendants' motions with respect to those counts.

Footnote 21:The defendant in Rosich was charged with three counts of grand larceny in the second degree and five counts of unlawful practice of a profession (Education Law 6512). Each count contained multiple instances of alleged misconduct.

Footnote 22:Citing People v Keindl, 68 NY2d 410.

Footnote 23:Had People v Sher (149 Misc 2d 194 [1990]) been decided after the Second Department's decision in People v Rosich (170 AD2d 703 [1991]), the trial court in that case would have been obligated to follow the precedent set forth by the Second Department, despite the fact that the court is in a different judicial department (Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]).

Footnote 24:Although not specified in his moving papers, the scope and direction of defendant's arguments are tantamount to a concession that he never possessed a valid license to practice massage therapy.

Footnote 25:Defendant names Doctors Rafail Shnayder, Inna Tovbina and Alexander Goldberg and physical therapists Boris Spector and Karina Sarukanyan as his on site supervisors.

Footnote 26: The assistant's opposition papers set forth several examples where New York statutes make reference to medical institutions and distinguishes them from a professional limited liability corporation.

Footnote 27:PL 30.00.

Footnote 28:PL Article 35.

Footnote 29:PL 40.00.

Footnote 30:PL 40.05.

Footnote 31:PL 40.10.

Footnote 32:PL 40.15.

Footnote 33:PL 125.25 (1)(a).

Footnote 34:PL 125.25 (3).

Footnote 35:Citing PL 25.00(2).

Footnote 36:Once again citing PL 25.00(2).

Footnote 37:Defendant Goldberg does not admit that he was part of any conspiracy, only that if he was part of such conspiracy he withdrew from it more than two years before the filing of the indictment. No such argument is raised with respect to the remaining charges because, as felonies, the statute of limitations is five years (CPL 30.10[2][b]).

Footnote 38:Pursuant to PL 40.10(1): In any prosecution for an offense ... it is an affirmative defense that, under the circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.

Footnote 39:Defendant's moving papers do not site any legal precedent in this state in support of this proposition.

Footnote 40:No evidence was presented, even in the moving papers, as to when the defendant Goldberg is alleged to have left the facilities in question. The moving papers merely claim that "by 2003" or "prior to 2003" the defendant left Midwood clinic and its related affiliates.

Footnote 41:In lieu of the sparsity of New York law on this particular issue, the remainder of this discussion relies primarily on federal law.

Footnote 42:But see United States v Lash (937 F2d 1077, 1083 [6th Cir 1991] cert denied 502 US 949) where the court ruled that the defendant has the burden of proving withdrawal because it is an affirmative defense.

Footnote 43:In accordance with CPL 255.20 (1), this court permitted the defendant to file his moving papers more than six months after the defendant was arraigned on the indictment. Although the defendant filed an extensive and comprehensive set of moving papers, no sworn allegations of fact were provided in support of counsel's claim that the defendant Goldberg withdrew from the conspiracy.

Footnote 44:See CPL 255.20 (2).

Footnote 45:Compare United States v Arias, 431 F3d 1327, 1341 (11th Cir 2005), where the defendant stopped treating patients at the suspect clinic and sent a letter to Blue Cross/ Blue Shield, as the medical administrator, stating that he was no longer practicing at the offending facility. Since the Medicare administrator would notify the other participating Medicare providers of defendant's departure from the offending clinic, defendant's letter constituted a communication "reasonably calculated" to reach the scheme's principal, notifying said principal of his cessation of participation in the conspiracy.

Footnote 46:People v Huntley, 15 NY2d 72.

Footnote 47:NY Constitution Art I, § 2.

Footnote 48:No notice of any such statements has been provided by the assistant attorney general.

Footnote 49:Prior to the filing of motions, the defendants were collectively ordered to pay part of the expenses to the State in copying the monumental amount of discovery material that was turned over, in accordance with CPL 240.70 (3).

Footnote 50:The assistant attorney general has already acknowledged her obligations under Brady v Maryland (373 US 83).

Footnote 51:Made pursuant to CPL 210.20(1)(c).

Footnote 52:See CPL 210.35(5).

Footnote 53:See CPL 190.30 (1).

Footnote 54:Grand Jury exhibits 31, 32, 48 and 49.

Footnote 55:Had this witness appeared before this court, I would have declared her to be an expert in this field.

Footnote 56:Excerpts of Grand Jury exhibit 32 were not read into the record.

Footnote 57:The defendants are welcome to have said exhibits reviewed and transcribed by their own experts, under conditions that will be set by the court.