People v Bletnitskiy

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People v Bletnitskiy 2009 NY Slip Op 33390(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] SUPREME CO RT OF THE STATE OF NEW YORK COU TY OF EW YORK: PART 72 ------------------------------------------------------------x THE PEOPLE OF THE STAT OF NEW YORK - agai nst - Indictment No. 843 /2008 YAKOV BLETNITSKlY, ORIE T ACUPU CTURE SERVI CE, P.C., et. al, D CISJON & ORDER Defendants. ------------------------------------------------------------x R. UVTLLER, J.: Def ndant Yakov Bll:tnitskiy is one of twenty-one indi vidual s and corporations charged with Enterprise Corruption, Scheme to Defra ud and First Degree Grand La rceny. Ile is also charged with Falsifying Busines. Records and Money Laundering. He moves to dismi s the indictment, asserting that the vario us count were not su pported by lega lly suffi cient ev idence before the Grand Jury. In reviewing the sufficiency of evidence before a Grand Jury, the court must consider whether th vid n " ic wcd most favorab ly to the People, if unexplained a nd un co ntradi ctcd -- and deferring all question . as to the we ight or quali ty of the ev idenc -- would warrant a conviction. " Peopl v. Swa mp, 84 Y2d 725, 730. The Jra nd Jury hea rd ev idence that defendnnt Bktnit kiy, a licen ed acupuncturist, worked at the St. ichola iroup, a no-fault medical clini c, that was managed by nnd patient treatrm:nl controlled by, co-def ndant Gregory Vinarsky, who is not a phy ician. The St. Nicholas Group also employed phy. ician , acupuncturists, chiropractors, technicians and other support staff. E ic.lence wa · adduced that over a fi ve-year period between September l , 2002, through epternber 30, 2007 the St. icholas Group arranged fake automobile acc idents and then submitted to various in urance companies numerous bi II for testing and treatment of these "patients." Further, [* 2] in regard to indi iduals with real injuries from real accidents, bills for testing and treatment that were eith r not pro ided or were medically unnecessary, were also submitted for reimbursement; that the foregoing activily enabled defendant Bletnitskiy and various co-defendants fraudulently to obtain in excess of six million dollars from various can-iers. Enterprise Corruption and Scheme to Defraud A per on is "guilty of enterprise corruption when, having knowledge of the existence of a criminal enterpri se and the nature of its activities, and being employed by or associated with such enterprise, he ... intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity." Penal Law §460.20[1 ][a]. A criminal transaction is defined as "conduct which establishes at least one offense, and which i compri ed of two or more or a group of acts either (a) so closely related and connected in point of time and circum tance of commission as to constitute a single criminal incident, or (b) so clo ely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture." riminal Procedure Law '40.10[2]. The Grand jury heard testimony and received documentary evidence that during the five-year period defendant Rletnitskiy either personally, or as an accomplice to various c:o-dcfendants (i) held the l. Nicho las Group out to be operating legally, whereas in fact it was operating in violation of ew York State law in that it was managed and patient treatment controlled by a non-physician, codefendant Gregory Vinarsky 1; (ii) that St. icholas engaged "runners" to stage automohi le accidents and to bring their uninjured passengers to the clinic for testing and treatment; (iii) directed the clinic's employee. lo bill for tests, procedures and other treatments for these "patients" as well as 1 ee Business Corporation Law§§ 1503; 1504; Public Health Law §2801-a; Education Law §6512-65 14 [* 3] for people who were injured in real accidents but were either never treated or treated unnecessarily; and that (i ) t. ichola repeatedly obtained reimbursement from insurance carriers under New York's no-fault insurance law for unperformed or unnecessary services. uffi ient vidcncc was thus adduced to establish a common goal of the ac.:ls, lo wit, defrauding insuranc.:e c.:ompanic for monetary gain and that, as a medic.:al clinic, the criminal enterprise had an a cc1tainahle structure apart from a pattern of criminal activity, with a system of authority that included managers, professional employees and administrative workers that enabled it members to commit a pattern of c.:riminal activity. Further, the criminal enterprise was not dependent on the commi ssion of any pa1iicular criminal a1.:l and did not depend upon any particular criminal tran saction or the defrauding of one paiticular in urance company. It did not exist simply or solely for the purpose of committing une or a fe of the all eged criminal act . Rather, that the St. Nicholas enterpri se was invo lved in a continuou and ongoing pattern of criminal activity over a five year period, with no pre-planned te1111ination <late. The 95 indi idual cri min al acts al leged in the indictment satisfy the statutory requin.:mcnts of timclincss, continuity and relationship, sufficient lo create a pattern of criminal activity with the common purpo, e of profiting by defrauding no-fault insurance carriers. The ev idence further demonstrated thatBletnitski y ha<l knowledge of the criminal enterprise and the nature of its criminal activities and, wi th intent to participate in or advance the affairs of the enterprise, he personally committed or was otherwise criminally liable fur the acts alleged in the indictm nt. Whether he personally engaged in each of the 95 criminal acts allcged in the indictment is irrele ant. A member of the enterprise need not participate in all of the enterprise s activities, or e en have know ledge of them, as long as he or he is aware of the basic tructurc and purpose of the enterprise and engages in the requisite number ofacts as part of the pattern . Penal Law §§460. I 0( 4); [* 4] 460. IO(l)(a); 460.20(2). See, People v. Canterella, 160 Misc.2d 8, 14; People v. Wakefield Financial Corporation , 155 Misc.2d 775, 785; People v. Pustilnik, 14 Misc.3d 1237 A (N.Y. Sup. Ct., March 1, 2007, R. Hayes, J.). See also, United States v. Young, 906 F.2d 615 , 619-620; United States v. Mitchell, 777 F.2d 248, 260, cert. denied, 476 U.S . 11 84; United States v. Cagnina, 697 F.2d 915, 920-922, cert. denied, 464 U.S. 856. Ba ed on th e foregoing, surficient primajacie ev idence was adduced to support both the co unt of Criminal Enterprise, as well as the count of Scheme to Defraud. First Degree Grand larceny With n.:spcct lo the two counts of First Degree Grand Larceny, the Grand Jury was properly instructed and ufficicnt evidence was adduced to establish each clement of the crimes. The amount totaled an exces of one million dollars. In a much as the St. icholas Group was operating m violation of State law, any reimbursement it received from the insurance caiTi ers was illega lly obtaint:<l an<l the amount received exceeded one million dollars. Second Def?ree Money Laundering Ev id nee was adduced that Rletnitskiy and hi corporation, Orient Acupuncture Service, P. C., received reimbursement in exec.. of one hundred thousand dollars directl y from insurance carri r. and th r after engaged in financi al transaction · from hi corporation to co-defendant Vinarsky and Vinarsky's contro ll ed corporations, whereby in exec of one hundn::<l lhousand dollars wa transfi ITed, in order to launder the proceed of the alleged cri minal conduct lo conceal the nature location , ourcc, ownership an d control of the proceeds of the St. Nicholas clini c. Evi dence was thu pn.:scnlcd that th amount laundered was in excess of one hundred thou and doll ars. [* 5] Defendant' reliance on United tates v. Santos,_ U.S._, 128 S. Ct. 2020 (2008), a lurality decision, is misplaced. 2 Subsequent to Santos the United States Supreme Court and other ederal court ha e limited the precedential effect of that case to its facts, which involved an illegal ambling operation, and not to money laundering arising from non-gambling operations. People . Howard, 2009 EXIS 17737 (3 'd . . App. LEXIS 1716 (4111 Cir. 2009); United State v. Fleming, 2008 U.S. App. ir. 2008); United States v. Peters, 2009 U.S. Dist. LEXIS 22451 (W.D .N .Y 009); Gotti v. United States, 2009 U.S. Dist. LEXIS 6018 (E.D . . Y. 2009); United States v. ~ ata ano 2008 U.. Di t. LEXIS 79622 (E.D. .Y. 2008); United States v. Prince, 2008 U.S. Dist. EXIS 91265 (W.D. Tenn. 2008); Bull v. United States, 2008 U.S. Dist. LEXIS 100764 (C.D. Cal 008); People . Po ner, Sup. Ct. .Y. County (June 11, 2009, M. Obus, J.). al ·ifying Business Records The Grand Jury reviewed documents submitted to insurance carries for "patients" involved 11 fake accident an<l for real no-fault patient for whom either unnecessary, exaggerated or no reatment was performed or exaggerated treatment was billed . The insurance companies, relying upon the information received from the St. Nicholas roup, proce ed the claim and made payment thereon ba ed upon these allegedly fraudulent ocument . Th ~se documents became business records ofthosecompanie . Sec, Peop le v. Weinreld, 5 AD2<l 91 1, fv denied 46 NY2d 846; People v. Linardos I04 Mi c.2d 56; People v. Dove, l 5 isc.3d 1 J34A. ee also, Peop le v. Bloomfield, 6 Y3d 165 ; People v. Marasa, 32 AD3d 369; The question raised in Santos, which involved an illegal l~ttery, was " . _ ,, whether the term "proceeds" in the federal money laundering statute means ptohls as oppo ed to receipts." 5 [* 6] The totality of the evidence before the Grand Jury was sufficient to estab lish that the defendant had knowledge of, and acting-in-concert with variou co-defendants, participated in , the ubmi ion or the e claims to the insurance carriers. The Grand Jury proceeding was not otherwise defective or impaired. Request for release and in ·pection th Grand Jury minutes is denied . To the extcnt defendant has moved to di miss the indictment on unspeci lied grounds raised by ariou co-defendants, that motion is also denied. Motion to S uppre Statements and/o r Tluntley Hearing A Iluntlcy hearing is denied. The People aver that they do not intent lo offer in their direct case at trial any statement made by the defendant to a law enforcement officer. Motion to Suppress Identification Evidence and/or Wade llearing A Wad hearing is denied . The idcntifications were made by po lice officers, not civilians, and \Vere confirmatory in nature. People v. Wharton, 74 Y2d 921; People v. Morales, 37 NY2d 262; Peopl v. Franci , 139 AD2d 527; People v. Applewhite, 202 AD2d 250; People v. Lewis, 258 AD2d 287; People v. Harris, 288 AD2d 20, Iv denied 97 NY2d 755; People v. Rumph, 248 AD2d 142. Motion to Sever Defendant mo ves to ever hi ca e from the co-defendants, claiming that he will be pn:j ud iced by the ex ten i ve amount of ev idence that wil I be pre cntcd against various co-defendants. The deci ion to ·ever rests in the sound di ·t:retion of the trial judge. CPL §200.20(3); People V. Y2d 174; People v. Watts, 159 J\D2d 740. Strong pub lic policy concerns fa or the joindcr of co-defendants when, as here, proof against the defendant is provided by the same e idence required for a co-defendant or defendants. People v. Mahboubian, supra; People v. [* 7] Caldwell, 78 NY2d 996; People v. Bomholdt, 33 NY2d 75, 87. In such situations, "only the most cogent reason wa1nnt a severance." People v. Bornholdt, 33 Y2d 75. Any potential prejudice to defendant from a joint trial can be addressed by proper limiting instructions to the jury. The motion to sever is denied . Motion for Mapp Hearing A Mapp hearing is denied. The property was recovered pursuant to a search WatTant and defendant ha. not alleged any factual allegations to estab li sh an expectation of privacy in the premise ca rch d. People . Donaldson, 209 AD2d 633, lv denied 84 NY2d I030 (employee of commercial c. tablishment lacks standing to challenge search thereof); Peop le v. Norberg, 136 Misc.2d 550; People . Ramircz-Pmtoreal , 88 NY2d 99, 108; People v. Ponder, 54 NY2d 160; People v. Wesley, 73 Y2d 35 J. Defendant's bare boned claim of in ufficient probable cause for the issuance of the wa1nnt without merit. See, People v. Ch ristian , 248 AD2d 960, lv denied 91 Y2d 1006. The wan-ant and underlying affidavit have been examined in camera. They are not pe1jurious on their face and were alidly issued upon probable cause. Motion to Preclude Prior Bad Acts The defendant ' motion to preclude i denied. However, a Sandoval hearing is granted and shall be held by the tria l court immediately prior to jury selection. Bill of Particulars/ Di co very/Brady The detailed indictment, the Voluntary Disclosure Form, the discovery materials provided to date the Answer to the d fondan t's Omnibus Molion, and the information provided at Supreme Court arraignmenl satisfy the People's burden to provide a bill of particulars and discovery. 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. [* 8] .t Application to File Additional Motions The defendant 's application to file additional motions is denied without prejudice and with lea e to ren w the app lication upon a showing of th e necessity for renewal. CPL §255.20(3). This con titutc the Decision and Order of this Court. ~ /~ .Ji)hl~ DATED: o ember 23, 2009 RE AK. UYILLER, .T.S.C. PEOPLE: DEFE SE: Martin J. Siegel, Esq . DJ\ Michael Ohm ADA Andre Seewald 0

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