People v Tabakman

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People v Tabakman 2009 NY Slip Op 33389(U) November 23, 2009 Sup Ct, New York County Docket Number: 843/2008 Judge: Rena K. Uviller Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] UPREME COURT OF THE STATE OF NEW YORK COU TY OF EW YORK: PART 72 ------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK - against - ROM!\ TABJ\KMA EAST SIDE EURO DIAG OSTJCS, P. C., ROMA M DICAL SERVICES , P.C., et al. Indictment No. 843/2008 DEC ISION AND ORDER Defendants. ------------------------------------------------------------x R. UVlLLER, J.: Defendant Roman Tabakman is one of twenty-one indi viduals and corporations charged with Entcrpri ·c Corruption, Scheme to Defraud and First Degree Grand Larceny. He is also charged with econd Degree Money Laundering, Insurance Fraud, and Falsifying Business Kecords all in connection with hi participation in an alleged criminal enterprise, the St. Nicholas Group. lie moves to dismiss the ind ictment as unsupported hy legally sufficient evidence. Jn reviewing the sufficiency of evidence before a Grand Jury, the Court must consi der wheth er the evidence "viewed must fa orably to the People, if unexplained and uncontradicled - and dcforring all questions as to the weight or qua li ty of the evi dence - woul<l warrant a rnnviction." People v. Swamp, 84 NY2<l 725, 730. The Grand Jury heard evi dence that defend ant Roman Tabakman, a licenced physician, worked at the St. icholas Group, a no-fault medical clinic; that over a five-year period, between September 1, 2002, and eptembcr 30, 200 7, the clinic operated illegally un<ler New York State law, in that co-defendant Gregory Vinarsky, a non-ph ysic ian, managed the clinic and controlled patient [* 2] treatment. ' t. icho\a a \ o employed other ph sicians a1.:upunduri ·ts, chiroiwacton;, technicians and other upport personnel. Evidence was adduced that over the five-year period the St. Nicholas Group arranged fake automobile accidents and then submitted to various insurance companies, numerous fraudulent bills for testing and treatment or these "patients." In regard to individuals with real injuries from real accidents bills for testing and treatment that wither were not provided or were medically unnecessary, were al o submitted for reimbursement; the foregoing activity enabled defendant Tabakman and various co-defendants to d fra ud insurance carriers in excess of six million dollars. Enterprise Corruption and Scheme to Defraud Counts A person is "guilty of enterprise corruption when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed hy or associated with such enterprise, he ... intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal acti ity." Penal Law §460.2or1J[a]. A pattern of criminal activity required to cstabli h enterprise corruption means conduct "con tituting three or more criminal acls that . . . are neither i olated incidents, nor so closely relaled and connected in point of time or circumstance or commission as to constitute a criminal offense or criminal transaction .. .. " Penal Law §460. l O[ 4J[b]. A criminal transaction is defined as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely rdated an<l connected in point of time and circum tance of commission as to con titutc a single criminal incident, or (b) so clo ely related in criminal purpose or objective as tu constitute elements or integral parts of a single criminal venture." Criminal Procedure Law §40. l 0[2l 1 Sec, Bu iness Corporation Law §§ 1503 ; 1504; Public Ilea Ith Law §2801-a; Education Law . 6512-6514 [* 3] trcannent. 1 St. icho\ a · a l o emplo ed other physicians, acupuncturists, chiropractors, technicians and other support personnel. Evi dence was adduced that over the five-year period the St. Nicholas Group an-anged fake automobi le accidents and then submitted to various insurance companies, numerous fraudul ent bills forte ting and treatment of these "patients." In regard to individuals with real injuries from real accident bill for testing and treatment that wither were not provided or were med ica lly unnecessary were also submitted for reimbursement; the foregoi ng activity enabled defendant Tabakrnan and ariou. co-defendants to defraud insurance ca1Tiers in excess of six million dollars. Enterpri e Corruption and Scheme to Defraud Counts A per on i 'guilty of enterpri e corruption when, having knowledge of the existence of a criminal enterpri . c and the natun; of it · ctctivities, and being employed by or a sociated with such enterprise, he .. . intentionally conducts or parti cipate in the affairs of an enterprist'. by parlicipating in a pattern uf t:riminal adivity.' Penal Law ~46 0.20f!Jra]. A patt rn of cri minal activity requi red to e tabli ·h enlt:rprise con-uption mean s conduct "con tituting thr e or more criminal acts that . .. are neith r isolated incidents, nor so closely related and connected in point oftime or circumstance or commission as to constitute a criminal offense or criminal rran action .... " Penal Law §460.10[4][b]. A criminal transaction is defined as "conduct which estahl is hes at least one offense, and which i compri cd of two or more ur a gro up uf ads either (a) so closely related and connected in po int ur time and circumstanc.e of commission as to constitute a sing I crimin al incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integra l parts ofa single criminal venture." Criminal Procedure Law §40.1 Ol2J . 1 See, Busincs Corporation Law §§ 1503 ;1504; Public Health Law §2801-a; Education Law §65 12-6514 -[* 4] - - - - - --- -- The Grand Jury heard testimony and received documentary evidence that during the five year period defendant Tabakman personally, or acting as an accomplice to other co-defendants, (i) held out the St. e icholas Group to be operating legally, whereas in fact it was operating in violation of York State Jaw; (ii) engaged "runners" to stage automobile accidents and to bring their uninjured pa. sengcrs to the clinic for treatment; (iii) directed the clinic' employees to bill for tests, procedures and other treatment for those "patients" as wel l as for people who were injured in real accident but wer either ne er treated or treated unnecessarily; (iv) falsified records regarding patient t ting and treatment for submi ssion to insurance caJTiers in support of fraudu lent claims to facilitate the criminal scheme; and ( ) repeatedly obtained reimbursement from insurance ca1Tiers under ew York' no-fault insurance law ror unperformed or unnecessary services. Sufficient evidence was thus adduced to establi sh a common goal of the acts, to wit, defrauding in. urance companie for monetary gain ; and that a a medical clini c, the crin1inal enterpri e had an ascertainable tructure, apart [rom a pattern of criminal activity, with a system of authority that included managers, professional emp loyees and admi nistra tive workers that enabled it memb r to comm it a pattern of criminal act ivity. Further, the criminal enterprise was not dependent on th e commission of any particular criminal act and did not depend upon any particular criminal tran action or Lhe Jefrauding of one particular in urance company. It did not exist imply or so lely for the purpo e of commilling one or a few of the alleged criminal acts. Rather, that the St. Nicholas enterprise was involved in a continuou and ongoing pattern of criminal activity over a five year period, with no pre-p lanned termination dat . The 95 individual criminal act alleged in the indictment satisry the statutory requirements oftim line , continuity and relationship, sufficient to create a pattern ofcriminal activity with the common purpo c of profiting by defrauding no-fault insurance carriers. 3 [* 5] Thee idence furtht:r dt:monstrated that defendant Tabakman had knowledge of the criminal enterprise and the nature of its criminal activities and , with intent to participate in or advance the affairs of the enterprise, ht: personally committed or was otherwi e criminally liable for the acts alleged in the indictment. Knowl edge may be established by either direct or circumstantial evidence. People v. Zorcik, 67 Y2d 670. Whether he personally engaged in each of the 95 criminal acts alleged in the indictment is ilTelevant. A member of th e enterprise need not participate in all of the enteqxi se 's activiti es, or even have knowledge of them, as long as he or he is aware of the basic structure and purpose or the enle111rise and engages in the requ isite number ofacts as pa11 of the pattt:rn . Penal Law §§460.10( 4); 460. l 0( I )(a); 460.20(2). See, People v. Canterella, 160 Misc.2d 8, 14; People v. Wakefield Financial Corporation, I 55 Mi c.2d 775, 785; People v. Pu tilnik, 14 Misc.3d 1237 A (N.Y. Sup. Ct., March 1, 2007, R. Haye', J.). See al o, Un ited States v. Young, 906 r .2d 615, 6 19-620; United States V. Mitchell, 777 F.2d 248, 260, <.:ert. denied, 476 U.S. 11 84; United States v. Cagnina, 697 F.2d 915, 920-922, cert. denied, 464 U.S . 856 . Based on the forego ing, uffteit:nl prima facie ev idence wa adduced to support hoth the count of Enterpri e Corruption , a well a the wunt of Scheme to Defraud with regard to defendant Roman Tabakman. Fir t Degree Grand larceny With respect to the two count of f'irst Degree Grand Larceny, the Grand Jury wa propcrly in ' tructed and . uffi cient evid nee wa adduced lo establish each clement of the crimes. The amount totaled an exec of one million dollars . ln as much as the St. Nicho las Group was operating in violation of State law, any . ·11 II reimbursement it received from the insurance camt:rs wast ega yo exceeded one million dollar . btained and the amount reccivt:d [* 6] Second Degree Money Laundering Sufficient evidence was adduced that in excess ofone hundred thousand dollars was paid by insurance carriers directly to defendant Tabakman and to his corporate entities, East Side Neuro Diagno tic , P.C. , and Roman Medical Services, P.C., and that in excess of one hundred thousand dollars was sub cquentl y transfe1Te<l to co-defendant Vinarsky, the non-physician manager of St. icholas an<l Vinar k:y contrail d corporations, in order to launder the proceeds of the alleged criminal conduct lo wnceal the nature, location, source, ownership and control of the proceeds the t. or ichola clinic. Defendant' reli ance on United States v. Santos, _ U.S. _ , 128 S. Ct. 2020 (2008), a plurality deci ion, i mi placed. 2 Subsequent to Santos the United States Supreme Comt and other federal cou1t have limited the precedentia l effect of that case to its facts, which involved an illegal gambling operation, and not to money laundering arising from non-gamh ling operations. People . Howard , 2009 U. . App. LEXIS 1716 (4 1h Cir. 2009) ; United States v. Fleming, 2008 U.S. App. LEXIS 17737 (3 rd ir. 2008); United . tate. v. Peters, 2009 U.S. Di t. LEXIS 22451 (W.O.N. Y 2009); Gatti v. United States, 2009 U.S. Dist. LEXfS 6018 (E.D.N.Y. 2009); United States v. Catapano, 2008 U.. Dist. LEXI 79622 (E.lJ. .Y. 2008); lJnited States v. Prince, 2008 U.S. Dist. LEXIS 91265 (W.D. Tenn. 2008); Bull v. United States, 2008 l J. S. Di t. LEXIS 100764 (C.D. Cal 2008); People . Po ner, up. Ct. N.Y. County (June 11 , 2009 M. Obus, J.) . Insurance Fruutl untl Falsifying Business Records The Grand Jury reviewed documents submitted to insurance carries for "patients" involved in fake accidents and for real no-fault patients for whom either unnecessary, exaggerated or no treatm ent was performed. or exaggerated treatment was billed. The question rais d in Santo ·, which invol ved an illegal lottery, wa whether the term "proceeds" in the federal money laundering statute means "profits" as opposed to "receipts." 2 [* 7] The in, urance companies, relying upon the information received from the St. Nicholas Group proces ed the claims and made payment thereon based upon these allegedly fraudulent document . The e documents became business records of those companies. See, Peop le v. Weinfeld, 65 D2d 911, lv denied 46 Y2d 846; People v. Linardos, 104 Mise.2d 56; People v. Dove, 15 Misc.3d l 134A. ee also, People v. Bloomfield, 6 NY3d 165; People v. Marasa, 32 AD3d 369; People v. Coe, 71 Y2d 852. The totality of the evidence before the Grand Jury was sufficient to establish that the defendant, acting-in-concert with various co-defendants, had knowledge of, and paiticipated in, the submission of these claims to the insurance carriers. The Grand Jury proceeding was not othcrwi e defective or impaired. The defendant's request for release and inspection the Grand Jury minutes is denied . To thee tent defendant has moved to di miss the indictment on unspecified grounds raised by arious co-defendants, that motion is also denied . Motion to Dismi The Pursuunt to CPL §30.10(2)(d) on<luct charged in the indictment was part of a course of 1;onduct. When an indictment charges a cour. of conduct, the indictment is timely if the conduct continued lo a date within the tatute oflimitations. ln the in tant case the indictment was filed on February 22, 2008. Any charged conduct that wa till continuing on February 23, 2008, is tht::refor timely. The date of the final acl of the erie. of acts that comprise the course of conduct, is thus the date from which timeliness is mca ured. ince the final act alleged in defendant Tabakman 's course of conduct occurred within the five year ·tatutc of limitations, the defendant's motion to dismi son that ground is denied . [* 8] Motion to Suppress Tangihle Property and/or to Controvert the Search Warrant The property was recovered from the St. Nicholas clinic pursuant to a search warrant. The warrant and underlying affidavit have been examined in camera. They are not perjurious on their face and were va lidly i sued upon probable cause. Defendant 's bare boned claim of insufficient probable cause for the issuance is without merit. See, People v. Glen, 30 NY2d 252, 262 ; People v. Christian, 248 AD2d 960, lv denied 91 Y2d 1006; People v. Clark, 28 J\D3d 1231 , Iv denied 6 Y3d 895; People . anchez-Reycs, 172 AD2d 1034, lv denied 78 Y2d 926; People v. Johnson, 154 AD2d 932 Iv denied 75 Y2d 771. He fails to set forth any sworn allegations of fact which create a factual di . pule that would require a hearing, or that contradict information provided to him in the Vol untary Di clo ure Form, Bill of Particulars and in the detailed Indictment. CPL '7 10.60[3J[b]; People v. Jones, 95 McDowe ll , 30 cott, 44 Y2d 721; People v. Mendoza, 82 NY2d 4l5 , 430; People v. D2d 160, lv denied 7 Y3d 850; People v. Arokium, 33 AD3d 458 ; Peopk v. D3d 427; People . Cambridge, 42 AD3d 350; People v. Thomason, 37 /\D3d 304; People v. Long 36 J\ 0 3d J 32. Iv denied 8 NY2d J 014. Fu1ther, d fendant has not all eged factu al all egations to establi h an expectation of privacy in the premise earchcd. Peopl v. Donaldson, 209 AD2d 633 , L denied84 NY2d l 030 (employee v of com mercial e tabli hment lacks standing to challenge search thereof); People v. Norberg, 136 Mi c.2d 550. People . lfamirez- Portoreal, 88 People v. Wes! y, 73 Y2d 99, 108; People v. Ponder, 54 NY2d 160; Y2d 351 ;See, People v. Wesley, 73 NY2d 353; People v. Villanueva, 161 AD2d 552; People v. Geraghty, 2 12 AD2d 358. Even if he did have a privacy interesl in the premises he has fai led to assert with any particularity that the supporting al'fidavil is pcrjurious or made with a reckless disregard for truth. ee, Franks . Delaware, 438 U.S.154; People v. Tambe, 71NY2d492,504; People v. Rayner, 171 AD2d 820, Iv denied 78 Y2d 972. [* 9] His futther claim that the search warrant is overbroad and lacks particularity is without merit and i factually unsupported. The warrant application contained reliable fads, explained in detail the property ubj ect to seizure, and was not over broad in term · of the documents sought. In light of the ext nsive enterprise in which the People contend the defendants were engaged, it would not ha e been practicable to identify the records and documents that related exclusively to the allegedly illegal acti itie of the St. 178 AD2d 189; icholas Group. See, People v. Couser, 303 AD2d 981; People v. Hulscn, nited tatcs Postal Service v. C.E.C. Services, 869 F.2d 184 (2"d Cir. 1989). Accordingly, the motion to suppress physical evidence and to controvert the search wa1nnt are denied , without a hearing. Motion to Sever Defendant mo es to se er his case from the co-defendants, claiming that because his participation in the enterprise was allegedly relatively minor, he will he prejudiced hy the extensive amount of cvid nc to be introduced again t the co-defendants. The deci ion to ever re t in the ound di cretion of the tri al judge. CPL §200.20(3); People . Mahboubian, 74 Y2d 174; People v. Watts, 159 AD2d 740. Strong public policy concerns favor the joindcr of co-defendant when, a here, proof against the defendant i provided by the same e idence required for a co-defendant or defendants. People v. Mahboubian , suprn; People v. Caldwell, 78 Y2d 996; People v. Bornholdt, 33 NY2d 75, 87. In such situations, "only the most cogent reasons warrant a severance." People v. I3omholdt, 33 Y2d 75. Any potential prejudice to defondant from a jo int triul can be addressed by proper limiting instructions to the jury. Accordingly, the motion to . ever is denied . Motion to Preclude Prior Bad Acts The dcfondant s motion to preclude is denied. However, a Sandoval hearing is granted and hall be held by the trial court immediately prior to jury selection. [* 10] . ' Brady Material The People are reminded of their continuing obligation under Brady v. Maryland (373 U.S. 83) . The defendant i directed to comply with the People's reciprocal demand for discovery. If the defendant obj cts to any part of the People's demand, he shall make a written objection and subm it uch to the Court within ten days of the service of a copy of this Decision and Order. Application to File Additional Motions The defendant's application to tile additional motions is denied without prejudice and with lea e to renew upon a showing of the necessity for renewal. CPL §255 .20(3). This constitutes the Decision and Order of this Court. DATED: o ember 23, 2009 (,~ ~ itJh RENA K. UV ILLER, J.S. C. PEOPLE: ADA Michael Ohm AD Andre Seewald DEFENSE: Mark Furman, Esq.

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