STATE OF NEW JERSEY v. JOHN AMABILE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3102-01T43102-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOHN AMABILE,

Defendant-Appellant.

 
 

Submitted: February 6, 2006 - Decided

Before Judges Cuff, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-08-0146-S.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This is a medical insurance fraud case. Defendant was an optometrist accused of falsifying patient records to reflect fictitious medical conditions, diagnoses and treatments. Following a jury trial, defendant was convicted of second degree conspiracy to commit theft by deception by planning, attempting, soliciting or commissioning attempted theft by deception, falsifying records or falsifying medical records, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-4, N.J.S.A. 2C:21-4a, and N.J.S.A. 2C:21-4.1 (count one); second degree attempted theft by deception, contrary to N.J.S.A. 2C:20-4, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:2-6 (count two); fourth degree falsifying records, contrary to N.J.S.A. 2C:21-4 and N.J.S.A. 2C:2-6 (counts three and four); and fourth degree falsifying medical records, contrary to N.J.S.A. 2C:21-4.1 and N.J.S.A. 2C:2-6 (counts five and six). He was sentenced to concurrent seven-year terms of imprisonment on counts one and two, and concurrent nine-month terms of imprisonment on counts three, four, five and six. In addition, the judge imposed an aggregate $100,000 fine on counts one and two, ordered restitution in the amount of $97,975.27 to the insurance companies listed in the pre-sentence report, imposed an aggregate $300 VCCB assessment, $450 SNSF assessment, and a $30 LEOPA penalty.

I

Defendant was licensed to practice optometry in New Jersey in 1991. In 1992, defendant opened "Spectacles", an optometry office in Neptune. In 1993, he opened a second office in Long Branch.

According to State investigators, between 1992 and 1997, defendant engaged in a complex scheme to defraud insurance carriers. His scheme involved offering eye examinations and prescription glasses at little or no cost to his patients and then over billing their major medical insurance carriers to make up the difference.

Defendant's former employees explained that when defendant prescribed glasses for a patient, the patient could choose frames from a certain category based on how well their insurance carrier paid for prescribed medical services. The glasses in defendant's office were color-coded, and defendant's staff knew which glasses a certain patient could choose based on a colored dot that defendant put on the patient's chart. If a patient had insurance that reimbursed defendant at a higher rate than other insurance carriers, that patient's chart would have a colored dot that would entitle the patient to a more expensive pair of glasses, such as a Cartier brand.

According to those former employees, to cover the costs of the frames provided to patients, defendant and his staff, at defendant's direction, falsified patient records to reflect (1) fictitious medical conditions and diagnoses, and (2) treatments that defendant never administered to the patients. Defendant would then submit false insurance claims based on those fictitious diagnoses and treatments. One investigator testified that, between 1992 and 1997, defendant billed twenty-nine different insurance carriers for approximately $212,000 of optometry services to patients that he had never provided.

His former staff members explained that defendant repeatedly falsely diagnosed patients with allergic conjunc-tivitis and vitreous floaters. They stated that those medical conditions were difficult to detect and often cleared up quickly without a trace. Defendant also commonly diagnosed conditions such as retinal exudates, ocular hypertension, hypertensive retinopathy, and diabetic retinopathy, which he noted in patients' charts and then billed insurance carriers for treatment. A majority of defendant's patients were diagnosed with some condition.

In fact, even though defendant had written these conditions in their charts, numerous patients testified that defendant had never informed them that they had these conditions. Many of these patients asserted that they did not experience any symptoms of these conditions and that they had not been treated for such conditions.

Defendant's former employees also testified that defendant additionally billed insurance companies for office visits that had never occurred. Defendant would also bill for an "office visit" when the patient merely came to pick up his or her glasses. The former employees explained that if a patient had to return to the office to pick up a pair of glasses, defendant would put the notation "must see doctor" on the patient's chart, would greet the patient and ask about the new glasses, and then would bill the insurance companies for an "office visit" even though he had not conducted any eye exam.

Investigators and his former employees further testified that defendant also over-billed for services to his family and friends. Kimberly Murphy, a licensed optician and defendant's former office manager and paramour, testified that defendant would bill for office visits for family and friends because they would not say anything. Murphy, who was granted immunity, identified 997 patient charts that she falsified or fabricated information at defendant's direction. Murphy explained that defendant had created a "cheat sheet" to assist her in falsifying patients' charts. This "cheat sheet" helped Murphy create false diagnoses and tests. Defendant told Murphy that it was necessary that they complete the patient charts and create a "paper trail" for use in case an insurance company audited defendant.

Candice Huddy testified that she worked for defendant in the Neptune office from April to August of 1994. She was responsible for submitting insurance claims. According to Huddy, defendant reviewed the billing records on one occasion and told her not to submit so many claims on each patient at the same time because it might make the insurance companies suspicious. In fact, Huddy testified that she saw defendant entering false diagnoses and conditions on various patients' charts, which she then used to bill insurance companies. She also testified that defendant once told her to help him change more than 100 office visit dates on patients' charts, which took several hours. According to Huddy, defendant told her that billing insurance companies was like a game, and that you "have to milk the insurance companies for everything you can get."

In addition to the investigators and former employees, the State presented testimony from three patients, Karol Michaels, Kevin Lattimer and Michele Hardy. These patients confirmed that defendant billed for visits that never occurred; diagnosed conditions, but never informed the patient; and billed for treatments never received. One of the patients, Karol Michaels, had contacted the Division of Criminal Justice and agreed to wear a recording device on four visits in January and February 1996.

On April 18, 1996, State investigators executed a search warrant on defendant's offices. They seized business records, tax records, insurance billing information and patient charts. The seized information corroborated the allegations they had received from former patients and employees regarding defendant's fraudulent billing practices.

In addition, Medicare had received complaints about defendant's billing practices from twelve of his patients and an employee. After its own investigation, Medicare suspended defendant from receiving further Medicare reimbursement. Medicare also referred its investigative findings to the Office of the Inspector General and to the New Jersey Department of Insurance.

Finally, the State presented Leonard Steiner, a licensed optometrist, as an expert. Steiner testified that an optometrist should inform any patient diagnosed with hypertensive retinopathy or vitreous floaters.

Defendant testified on his own behalf. He asserted that he had provided all of the optometric and ophthalmologic services for which he had billed the insurance companies. As to Michaels, defendant claimed that he examined her on the dates that he billed for services rendered to her, and he identified his voice on a recording from January 31, 1996. He could not, however, indicate where, during the recording, the exam had occurred.

Defendant also stated that the testimony about false diagnoses and over billing from Murphy, Huddy, Michaels, and the other patients and employees was all untruthful. He challenged the State's summary chart.

He also explained that he was able to offer free glasses and contact lenses to his patients because vendors gave him special deals because he had been an Olympian. He denied billing insurance companies for services he never rendered to friends and family members. Defendant, however, acknowledged that he billed insurance companies for: (1) thirty-four office visits by his brother; (2) seventeen office visits by his mother in 1996; and (3) nineteen office visits between January and May 1993, by his sister for headaches. He further acknowledged that he stopped submitting bills for his sister when her health insurance company sent him a letter stating that they were going to review the claims submitted for frequent office visits.

In addition, defendant admitted that he had submitted bills for eighteen office visits by one of his friends, Joseph Keosseian, over a four-month period. According to records, Keosseian received a free pair of Cartier glasses every year from 1993 to 1995, and every member of Keosseian's family also received a free pair of Cartier glasses.

Defendant denied that the cheat sheet, which he gave to Murphy, was intended for false billing purposes. He stated that it was meant as a guide in completing legitimate entries on patient charts. Defendant admitted, nevertheless, that he had instructed his employees not to make bank deposits in excess of $9,999 on any given day.

Three former employees, Nikkia Fisher, Victoria Solomeno-Rice, and Yvette Nagtalon, testified for the defense. Fisher stated that defendant was a good employer, and that she sometimes saw Murphy or other employees administering some of the tests on patients for defendant.

Solomeno-Rice testified that between 1992 and 1996, while she worked part-time in billing for defendant, she also worked for a pain management specialist, Dr. Sheldon Goldofsky. At both offices, she worked with Joseph Keosseian, who was also processing defendant's insurance claims. Solomeno-Rice testified that she often saw Keosseian fraudulently signing the doctors' names on claims and then sending those claims to insurance companies on behalf of the unsuspecting doctors. Solomeno-Rice admitted to helping Keosseian only once, although she admitted that she had pled guilty in February 1998 to third degree conspiracy with Keosseian to commit theft by deception and fourth degree falsifying records. Nagtalon testified that she did some of the tests on patients for defendant.

Several former patients also testified for the defense. They claimed that defendant examined and treated them either at no cost or billed their insurance company for the appropriate amounts and had conducted the tests stated in their charts.

Two former patients, however, were surprised to learn that their charts stated that defendant had diagnosed them with conjunctivitis; the former patients declared that they had never been treated for that condition nor had had any symptoms. They also denied visiting the office as many times as their charts indicated. One of those former patients was also surprised to learn that defendant had diagnosed him with vitreous floaters, retinal exudates and occular hypertension. Finally, two character witnesses testified that defendant had a reputation for truthfulness in the community.

II

On appeal, defendant raises the following arguments:

POINT I- THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

A. THE STATE IMPROPERLY WITHHELD EXCULPATORY EVIDENCE.

B. THE STATE TAMPERED WITH EVIDENCE.

POINT II- THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL ON THE BASIS OF IRRELEVANT, PREJUDICIAL TESTIMONY ELICITED BY THE STATE.

POINT III-THE TRIAL COURT COMMITTED ERROR BY ALLOWING ADMISSION OF EXPERT TESTIMONY FROM A LAY WITNESS.

POINT IV- DEFENDANT'S CONVICTION MUST BE REVERSED SINCE HE WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY.

POINT V- THE IMPOSITION OF THE FINE AND RESTITUTION IN THIS MATTER CONSTITUTES A VIOLATION OF DEFENDANT'S RIGHTS TO TRIAL BY JURY, DUE PROCESS AND DOUBLE JEOPARDY.

A. THE FINES AND RESTITUTION IMPOSED VIOLATE DUE PROCESS AND THE RIGHT TO TRIAL BY JURY.

B. THE FINES AND RESTITUTION IMPOSED VIOLATE THE DOUBLE JEOPARDY CLAUSE.

POINT VI- THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

We have canvassed the record in light of the arguments presented on appeal and discern no basis to disturb the verdict or the sentence.

III

Defendant contends that the judge erred by denying him a new trial after the State withheld exculpatory evidence and tampered with other evidence. He asserts that the State: (1) improperly withheld a memorandum of interview of Joseph Keosseian; (2) improperly withheld Nikkia Fisher's identification of defendant's voice on the recording dated January 31, 1996; (3) improperly withheld Victoria Solemeno-Rice's criminal record; and (4) corrected a typographical error on the summary chart submitted to the jury without telling defendant.

Following the jury verdict, defendant moved for a new trial. He argued that the prosecution tampered with the evidence and repeatedly violated Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). He claimed that, absent these violations, the proofs were insufficient to support the jury's verdict against him. The State argued that defendant's complaints did not rise to Brady violations and that there had been no tampering with the evidence.

The judge denied defendant's motion, stating that he found no hint of a Brady violation. The criminal record of Solomeno-Rice was disclosed during trial. The trial judge held that the Keosseian interview could not be considered exculpatory evidence because he invoked his privilege against self-incrimination after informing the interviewer that defendant was innocent and that he would not testify at trial. Furthermore, the judge held that the verdict was "worthy of confidence" and rejected the contention that defendant did not receive a fair trial.

A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence material to either his guilt or punishment. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 420 (1984). Our courts have also held that a defendant has a constitutionally protected privilege to obtain all evidence material to either his guilt or innocence. State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.), certif. denied, 101 N.J. 335 (1985). Thus, the withholding of evidence favorable to a defendant constitutes a denial of due process and a denial of the right to a fair trial.

In Brady v. Maryland, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, the United States Supreme Court declared that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Accord State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999); State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000). Such exculpatory evidence includes not only directly exculpatory evidence but also evidence that may impeach the credibility of a State witness. Russo, supra, 333 N.J. Super. at 134. It includes any evidence contained in the prosecution's files, even if not directly known to the prosecutor. Nelson, supra, 155 N.J. at 498.

"In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268-69 (1999). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). Our Supreme Court has stated that the focus should be on the essential fairness of the trial. State v. Carter, 69 N.J. 420, 433 (1976). The test is whether the evidence could induce reasonable doubt as to the verdict or would tend to exculpate defendant. Id. at 433-34.

In State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (citations omitted), we explained:

This is essentially the same standard that we have traditionally applied in determining whether a defense attorney's errors are so egregious as to amount to a Sixth Amendment violation. In applying this test where a conviction has followed a full trial, we assess the strength of the State's case, and determine whether introduction of the suppressed evidence would probably have changed the jury's verdict. While we have characterized that analytical process as somewhat "speculative," . . . it is not too distant from the determination we are often required to make in deciding whether a trial judge's error was so harmful as to compel vitiation of a conviction.

The focus of Brady, however, is on nondisclosure of exculpatory evidence, not on challenges to the authenticity of evidence. State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Defendant's complaints that the State committed numerous irremediable Brady violations have no merit because that evidence was disclosed to defendant during the trial with enough time for the defense to investigate. Federal courts have found that "[n]o denial of due process occurs if Brady material is disclosed to [defendants] in time for its effective use at trial." United States v. Higgs, 713 F.2d 39, 44 (3d. Cir. 1983), cert. denied, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1984). See also Martini, supra, 160 N.J. at 170 n.5.

The Keosseian statement cannot be considered exculpatory evidence. To the extent that it included facts concerning an insurance fraud scheme, it concerned a medical professional other than defendant. Furthermore, the trial judge barred the State's use of the complete and signed statement provided by Nikkia Fisher when defense counsel reported he never received the final version of the statement, and defendant was able to fully examine this witness about her identification of defendant's voice on a recording.

Finally, defendant contends that the prosecution tampered with two pieces of evidence: (1) the summary chart that was used by the State and presented to the jury, and (2) an overhead transparency of a patient's chart. Defendant claims that these changes amounted to Brady violations. We disagree.

During trial, the judge admitted into evidence a summary chart prepared by the State of the false claims allegedly submitted by defendant. The summary chart contained one typographical mistake of one year in one entry, and the prosecutor alerted the court and defense counsel to the error and to the fact that it had been corrected prior to trial.

Defense counsel argued that this was a Brady violation. The judge declared that everyone had been aware of the change in the summary chart. The court further commented that the change in the summary chart had "nothing to do with the validity, accuracy of this trial or its fairness. It is a correction. It is a correction. Let's move on." The judge did not abuse his discretion by refusing to find a Brady violation because the change had been presented to the defense prior to trial and it was not material to any issue.

Nevertheless, defendant also contends that the judge erred by allowing the State to alter, without first telling the defense, an overheard transparency of the patient treatment card of Frank Ten Broeck, who testified during the State's rebuttal. His patient card indicated that defendant had found two macular exudates, but the transparency that the State produced on the overhead projector for the jury suggested that there was a third dot on his eye.

Defendant claims that the prosecution intentionally altered the transparency. There was no evidence in the record that the prosecution intentionally altered the exhibits. It appears from the record that the differences between the original and the transparency occurred when the transparency was reproduced, making it easier to present to the jury.

Moreover, during Ten Broeck's cross-examination, defense counsel thoroughly explored the discrepancy between the original patient chart and the transparency and Ten Broeck acknowledged the discrepancy. In any event, the discrepancy noted between the record and the exhibits did not touch on the heart of the witness's testimony that defendant never informed him of two ocular conditions and that defendant billed the insurance for an examination that did not occur.

IV

Defendant contends that the judge erred by denying his motion for a mistrial after allowing the prosecution to bring in irrelevant and inadmissible testimony designed to impugn his character and integrity. Specifically, defendant refers to evidence that he had sought kickbacks from patients, had participated in a failed investment scheme, had threatened the life of the other person involved in that scheme, and had performed cataract surgery while he was intoxicated on a patient who became paralyzed from the surgery.

The standard governing the grant of a mistrial is the same as that for a new trial. State v. Hightower, 146 N.J. 239, 266 (1996). The standard is

whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps.

[Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2006) (citations omitted).]

A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). The decision "rests within the sound discretion of the trial court and it should not be disturbed when . . . there is no clear showing that the court abused its discretion or that the defendant suffered actual harm." State v. Labrutto, 114 N.J. 187, 207 (1989). In fact, the trial court is best equipped to gauge the effect of the improper evidence on the jury and whether it is susceptible to being cured by a cautionary or limiting instruction. State v. Winter, 96 N.J. 640, 646-47 (1984). Accordingly, appellate courts generally defer to the trial court's discretion in issuing a limiting instruction and in denying a mistrial unless manifest injustice would result. Labrutto, supra, 114 N.J. at 207.

The rules of evidence provide that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury. . . ." N.J.R.E. 403. "Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith." N.J.R.E. 404(b). Such evidence, however, "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. See State v. Koskovich, 168 N.J. 448, 482 (2001) (noting that "[e]vidence of a defendant's other crimes, wrongs, or acts may not be admitted into evidence to prove a defendant's criminal disposition as a basis for proving guilt of the crimes charged").

In order to be admissible in a criminal case, the evidence of other crimes, wrongs or bad acts must satisfy the following four-prong test: (1) the evidence must be admissible as relevant to a material issue; (2) the evidence must be similar in kind and reasonably close in time to the offense charged; (3) the evidence must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). The rule has been found to be one of "exclusion" rather than "inclusion" and is intended to bar admission of other crimes "when such evidence is offered solely to establish the forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997).

When other "bad conduct" evidence is admitted at trial, the court must sanitize it by instructing the jury pursuant to N.J.R.E. 105 as to the limited use of the evidence. State v. Marrero, 148 N.J. 469, 495 (1997). In fact, the court must give the instruction even if not requested by the prejudiced party. State v. Clausell, 121 N.J. 298, 323 (1990). The instruction must not only caution against a consideration of that evidence for improper purposes, it must, through specific instruction, direct the jury's attention on the permissible purposes for which the evidence is to be considered. State v. G.S., 145 N.J. 460, 472 (1996).

Admissibility of evidence under N.J.R.E. 404(b) is generally within the trial court's discretion. State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif. denied, 165 N.J. 138 (2000). "'Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.'" Marrero, supra, 148 N.J. at 483 (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). However, "[w]hen a trial court fails to employ the Cofield test to analyze the admissibility of other-crimes evidence, 'no deference is to be accorded the trial court's decision to admit that evidence; nor is that decision entitled to be reviewed under an abuse of discretion standard.'" State v. Reddish, 181 N.J. 553, 609 (2004) (quoting State v. Darby, 174 N.J. 509, 518 (2002)).

On direct examination, the prosecutor asked Candice Huddy whether a patient had ever mentioned kickbacks of any sort. Before Huddy could respond, the court sustained defendant's objection. Defense counsel moved for a mistrial based on the question alone. The court denied defendant's motion for a mistrial and gave the jury a curative instruction:

There is also as we left yesterday patient complaints. They are not offered for the proof of the complaints, the truth of them. The fact of complaints might be relevant to you when you finally deliberate and might not.

So, I ruled that in general the fact of complaints might be relevant within the scope of our rules and then the witness again inadvertently started to talk about one patient who wanted a kick-back or something. Now, that's a flash word. I also told you to disregard it. That patient is not here. The validity of that statement can't be explored by crossexamination and that's well beyond the fact of complaints. That is hearsay. A statement in open court by someone not under oath, not the declarant, and you can't cross-examine such a statement like that. So, I turned to you and said disregard it. And that's what you have to do.

The jury is presumed to have followed that instruction. State v. Manley, 54 N.J. 259, 271 (1969). Because the judge sustained defendant's objection before any testimony of kickbacks was offered and provided a prompt and forceful curative instruction, he contained, if not eliminated, any prejudice to defendant.

Defendant claims that the State improperly elicited testimony from Candice Huddy that he drank Margaritas prior to performing cataract surgery in his office on a patient, who was paralyzed as a result. In the State's case-in-chief, Huddy testified that she and defendant went out for drinks before he was scheduled to perform surgery on a patient. She claimed that while she drank non-alcoholic drinks, defendant was "drinking some Marguerites [sic]" and told her that he was drinking because he was going to perform cataract surgery for the first time. She then alleged that, after the surgery, in the examination room, defendant reported that the patient had been paralyzed. Defense counsel did not immediately object; counsel's only objection came when the prosecutor later asked Huddy about kickbacks.

During the resulting sidebar, the judge also noted that he could understand why the prosecutor had asked Huddy about the paralyzed patient, but that "defendant is not on trial for drinking." Indeed, it was the defense who first introduced the evidence that one of defendant's patients had been paralyzed after a surgical procedure. That is, earlier in the trial, on cross-examination of a State investigator, defense counsel asked the investigator whether she recalled receiving information from Huddy that one of defendant's patients had been paralyzed after going to defendant's office. The investigator did not recall that information and said that she did not think that the paralysis was the result of defendant's treatment. Counsel pressed the investigator about why she had not investigated this allegation, and the investigator responded that she was "conducting a criminal investigation of billing for services not rendered, not for negligence or malpractice."

After the judge noted the improper allegations of drinking during the sidebar on defense counsel's objection to kickbacks, defense counsel then objected to the testimony about defendant's drinking and moved for a mistrial. The jury was excused for the day. The next morning, the judge denied the motion and instructed the jury against using evidence of defendant's drinking to determine guilt:

There is also some indication of drinking. That will be explored I'm sure on cross. The witness isn't finished yet. But this Defendant is not on trial for threats, not on trial for any other schemes other than what I told you, theft by deception, attempted theft by deception, the various forgeries. So that we have to be careful to keep an even playing field which essentially means implementing the Rules of Evidence so that everyone gets a fair trial, both sides.

. . . .

So that simply you have to disregard these things that come in inadvertently. I said that now three times with the fine line being drawn that you are always entitled to explore motive for testimony in your ultimate determination as to what testimony is believable, credible and reliable. So, these instructions are important.

Any harm was cured by the judge's instruction, which the jury is presumed to have followed. Manley, supra, 54 N.J. at 271. Moreover, we can infer from experienced defense counsel's failure to immediately object to the allegations of drinking that counsel did not consider the remarks prejudicial until the judge noted them during the sidebar on counsel's objection to the kickback testimony.

Defendant also contends that the State, while questioning Huddy, improperly introduced evidence of a failed real estate investment. While the relevancy of this line of questioning was dubious, it was not capable of producing an unjust result amid the abundance of evidence of defendant's guilt.

Huddy testified that she, her family and defendant made investments through an entrepreneur, who eventually lost their money. They tried to contact the entrepreneur to get their money back, but to no avail. Huddy testified that disputes arose concerning the failed investment, which disputes eventually led to Huddy's losing her job at defendant's office and defendant filing a lawsuit. Defendant did not object at trial to this testimony.

The prosecutor then asked Huddy whether defendant went to the entrepreneur's house to ask about the money and to threaten the entrepreneur. Defense counsel objected, and the court sustained the objection. The prosecutor then questioned Huddy about defendant's drinking and performing surgery and about kickbacks. A sidebar ensued, the jury was excused, and the next morning, the judge also instructed the jury not to consider evidence of threats:

There are a couple of areas that I would like to deal with specifically at the risk of drawing your attention to them. I sustained an objection with respect to purported threats against this financier and I don't particularly know where that's going. The witness kept going, yes, there were threats. She wasn't there. It cannot be explored on cross [e]ffectively because she wasn't even there. I asked you to disregard it. I made my ruling and again traditionally the witness just keeps on talking and again inadvertently usually, and I perceive no ambush here by either side.

. . . .

So, I tried to rule quickly enough so that the words aren't articulated to you in the heat of the adversary process. Counsel try and object in a timely fashion. Sometimes it works, sometimes it does not. I'm talking in general now, both sides. I am not criticizing anyone here. It is an adversary process and they are doing a good job.

So that simply you have to disregard these things that come in inadvertently.

This testimony neither reflected poorly on defendant nor suggested that he was guilty of the charges. Furthermore, Huddy's testimony that defendant made a threat in furtherance of retrieving the money from a failed investment was stricken from the record, and the court gave a prompt curative instruction. Any harm was cured by the judge's instruction, which the jury is presumed to have followed. Manley, supra, 54 N.J. at 271.

Finally, defendant contends for the first time on appeal that the State improperly elicited testimony that he had instructed his employees not to deposit more than $9,999 on a given day and that he threatened Murphy. The admission of this evidence was not plain error, that is, it was not "clearly capable of producing an unjust result." R. 2:10-2. Defendant conceded that he had instructed his employees not to deposit more than $9,999 into the bank on a given day. The evidence was properly admitted to show that defendant had attempted to avoid detection by law enforcement. A logical inference can be drawn that defendant instructed his employees to structure the deposits so as to avoid the federal reporting requirements and thereby conceal his illegal gains.

Defendant also now objects to Murphy's testimony about threats he made to her. Murphy testified that she wanted to go on a date but defendant wanted to stay home and falsify more patient charts. Murphy told defendant that she wanted "out" and, according to her, he said that if she "ever tried to do anything to hurt him or his business, that he would find me and have me killed and that he knew people that could do that." Defendant repeated this threat several times, and she believed him. Defense counsel did not object, and even questioned Murphy on cross-examination about these threats.

Murphy's testimony about defendant's threats was evidence in furtherance of the conspiracy to commit theft and falsify documents. The failure to object and the cross-examination of Murphy demonstrate that the admission of this evidence should not be considered plain error.

In sum, we hold that the trial judge did not abuse his discretion by failing to grant defendant's motion for a mistrial. In addition, none of the alleged errors presented for the first time on appeal satisfy the plain error standard.

V

Defendant contends that the judge committed reversible error by allowing, over defendant's objection, Christine Hollenbach to testify for the State and give expert testimony without having been qualified as an expert or having submitted an expert report. The State claims that Hollenbach testified as a fact witness, that she gave no expert opinions, and that defendant's claims on appeal include no specific instances of when she gave such expert opinions. We agree with the State's position.

The prosecutor called Hollenbach as a fact witness regarding Medicare billing procedures and the receipt of insurance claims submitted by defendant's office to Medicare and Medicaid. At the time defendant had submitted his Medicare claims for payment, Hollenbach was an auditor and senior fraud investigator in the Fraud Investigation Department of Pennsylvania's Blue Cross/Blue Shield Medicare Services. Her duties included investigating complaints from Medicare patients and conducting proactive data analyses, which meant comparing behavior patterns and scheme of optometrists and then comparing them against the bills submitted by other optometrists.

Out of the jury's presence, defense counsel objected to Hollenbach's testimony, arguing: (1) that her name had not been disclosed to the defense as a fact witness, as one of the State's witnesses who would be testifying as a custodian of records, or as an expert; and (2) that she had not been designated or qualified as an expert and had not submitted a report.

The prosecutor claimed that Hollenbach was a fact witness because of her involvement in investigating defendant and that her name had been disclosed to the defense. The prosecutor gave an offer of proof that Hollenbach "was involved in an investigation based upon complaints that were made as a result of some of the inflated bills that the Defendant had submitted on behalf of some of the beneficiaries, and, as a result of that review and as a result of her investigation, the Defendant's claims were suspended by Medicare." The prosecutor also declared that Hollenbach was a custodian of records.

The judge reviewed the record himself and found no discovery violation because Hollenbach's name had been disclosed to the defense during a pretrial hearing on August 16, 2001. The judge then ruled that Hollenbach was a fact witness and declared that he would bar her from giving her opinion, and that, if defendant objected during questioning, he would make rulings on the scope of the testimony "on a question-by-question basis." Thereafter, Hollenbach testified as to the eye-related services that Medicare covered and as to Medicare's billing procedures. She explained that Medicare only reimbursed ophthalmologists and optometrists for services that were medically indicated, such as when a patient had a symptom or diagnosis that warranted a particular procedure or test. She also explained deductibles.

Hollenbach then testified that she conducted an on-site audit of Spectacles and interviewed fifteen of defendant's patients. When the prosecutor asked about her notes of these interviews, defense counsel objected. Out of the jury's presence, defense counsel argued that Hollenbach's interviewing of patients was a surprise to him and that she was now testifying as an expert without the prosecution having disclosed her records and reports.

The judge agreed that Hollenbach was starting to testify beyond the scope of the prosecution's offer of proof. He precluded the witness from relating the information gathered during her investigation. He allowed her to testify regarding the circumstance which prompted the investigation and what occurred as a result of her investigation. Thereafter, Hollenbach testified that they had billing complaints from defendant's patients and from one employee, Candice Huddy. In response to the complaints, she interviewed the patients, selected a random sampling of defendant's services to review, obtained records of those billed services, and submitted them to her optometry specialists for review. As a result of her actions, Medicare suspended all payments to defendant, and the case was referred to the Office of the Inspector General and then to the New Jersey Insurance Fraud Department.

The trial judge properly allowed the State to present Hollenbach as a fact witness. Her name had been disclosed to the defense early in the case; she was personally involved in investigating claims submitted by defendant; she conducted an on-site audit; and the judge refused to allow the prosecutor to elicit any opinions, expert or otherwise. As confined, her testimony did not implicate either N.J.R.E. 703 (expert opinion) or N.J.R.E. 701 (lay opinion). Moreover, defense counsel conducted an extensive cross-examination of the witness.

VI

Defendant contends that he was denied his constitutional right to a fair and impartial jury because "the State made impermissible contact with jurors," and that the judge erred by refusing to conduct any voir dire of the jurors and by denying defendant's motion for mistrial. We disagree.

During trial, on August 22, 2001, the court adjourned for a ten-minute recess. Before the jury returned, defense counsel moved for a mistrial, arguing: (1) the State investigator was holding the door for the jurors as they left the courtroom, and he was "nodding and smiling and making communication"; (2) a non-witness spectator, Dr. Schneider from the State Board of Optometry, "was nodding and smiling [at some jurors] and spoke to them and directed them to the elevator in the hallway," and then, in front of one juror, he "walked back and forth" in the hallway "like Charlie Cha[pl]in smiling and his little slap stick"; and (3) a member of the State Inspector General's Office was outside the jury room and, when the guard asked the investigator to move away, the investigator told him that "he could not and would not, he can stand inside the door of their room but not outside."

Defense counsel argued that State investigators were attempting to influence the jury. The judge declared that he had observed that Schneider had had no contact with jurors. Defense counsel disagreed. The prosecutor argued that Schneider was not a witness and that the jurors did not know Schneider's association or official capacities. The prosecutor also declared that he was not aware of any conversations between investigators and jurors, that he did not know who the investigator was who opened the door for the jurors, and that opening the door "was something that was done out of courtesy as opposed to trying to curry favor."

The judge denied the motion for a mistrial, stating:

This is what I've done. I've asked our security personnel to mann [sic] the outside corridor.

Number two, I will once again tell the jury that they do not have a choice. When I say go downstairs that means go downstairs and for the specific purposes we don't want you affiliating yourself with anyone involved in this case in any way, shape or form. . . .

With respect to the investigator holding the door, I'm not going to blow that out of proportion, although you correctly bring it to my attention. That's a courtesy gesture and I found nothing to be a problem. I pretty much sat here as the jury left.

With respect to Schneider, he's not under the control of the State. I'm not in any position to tell Schneider not to say anything but I am in the position to tell the jurors not to entertain conversation or any bantering or currying favor by anyone outside of the courtroom.

Thereafter, the judge provided the jury with "detailed instructions regarding the breaks, lunches, morning hours and the evening hours." He told them not "to affiliate with anyone involved in this case" and to "immediately" tell him "if someone talks to you about this case or attempts to engage you in conversation about your role as a juror. . . ." The judge explained that the jurors were "the judges of the facts and . . . [had] to maintain [their] objectivity."

The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants "the right to . . . trial by an impartial jury." U.S. Const. Amends. VI and XIV; N.J. Const. Art. I, 10. This means "a jury that will decide the charge according to the evidence presented in court and a jury that is free of outside influences." State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.), certif. denied, 151 N.J. 466 (1997).

Defendant now argues that the judge clearly erred when he refused to question the jury about these three matters. He declares that the trial judge failed to take the necessary steps to assure that a fair and impartial jury evaluated defendant's case. And he asserts that "[i]t was incumbent upon the trial court to undertake at least a minimal inquiry to assure the parties that no extraneous matters had caused any of the jurors to prejudge the case. . . ."

Our courts have permitted and often have required voir dire of jurors about the possibility and impact of outside or non-evidentiary extraneous influences affecting the ability of a juror to be fair and impartial. Hightower, supra, 146 N.J. at 248-49, 265-67; State v. Grant, 254 N.J. Super. 571, 580-87 (App. Div. 1992). In fact, in a criminal case, there is "a presumption of prejudice" that attaches when there is "'any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury,'" and the State has the burden of establishing that the juror contact was harmless to the defendant. Scherzer, supra, 301 N.J. Super. at 487 (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 656 (1954)). Thus, in Scherzer, this court found that a judge should take action to assure that the jurors are not tainted by facts which could influence them to arrive at a verdict in a manner inconsistent with the evidence and the court's charge. "The test is 'not whether the irregular matter actually influenced the result but whether it had the capacity of doing so.'" Id. at 486 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). Accord State v. R.D., 169 N.J. 551, 558 (2001).

Nevertheless, a new trial is not necessary in every instance where it appears a juror has been exposed to outside influence. R.D., supra, 169 N.J. at 559. See Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982) ("due process does not require a new trial every time a juror has been placed in a potentially compromising situation . . . ; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote"). "The decision to grant a new trial based on jury taint resides in the discretion of the trial court," because the judge is "in the best position to determine whether the jury has been tainted." R.D., supra, 169 N.J. at 558-59.

Here, the judge did not err or mistakenly exercise his discretion by refusing to question the jury as to any of the alleged contacts with the State investigator, with Schneider, or with the member of the State Inspector General's Office. Even assuming that such juror contacts occurred, these contacts did not have the capacity to prejudice defendant or rise to the level of suggesting that a juror may have been tainted. It is clear that the jury had no knowledge of Schneider's identity or connection to defendant.

The judge recounted his observations in the record and declared that he saw no improper contacts. Any contacts that did occur were "neutral" as the jurors were moving unescorted between the courtroom and the jury room. Accordingly, the judge asked security personnel to stand in the outside corridor. He also gave a curative instruction with "detailed instructions" regarding the jurors' movements, and then reminded the jurors not to talk to anyone and to tell him of any contact, because they were the factfinders and needed to maintain their objectivity. Such instructions were adequate to dispel any possible taint. See Winter, supra, 96 N.J. at 647 ("when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court"). Finally, the facts described fall far short of jurors overhearing a Sheriff's Officer refer to the defendant as a murderer as in State v. Walker, 33 N.J. 580, 598 (1960), or a juror chastising an attorney for representing the defendant, as in State v. Marchitto, 132 N.J. Super. 511, 514-15 (App. Div.), certif. denied, 68 N.J. 163 (1975).

Moreover, the three contacts now challenged by defendant on appeal are not like the situation that was later brought to the judge's attention during defendant's trial. According to the record, on September 17, 2001, the prosecutor told the judge that she had just learned that defendant's father had tried to contact a sitting juror. According to State investigators, certain individuals, not associated with the case, had been contacted by defendant's father, who was looking to get from them the phone number of one of the jurors. The judge announced that his first "obligation" was to decide whether defendant's father had made such an attempt. After reviewing the matter with counsel and the investigators, the judge announced that his "focus and duty is to make sure the jury is free from taint"; consequently, he decided to "review their oath-bound obligations and restrictions [with the jurors], and . . . ask them in a neutral way whether or not they have been contacted by anyone with respect to their role as a juror in the case." Thereafter, the judge did just that, and none of the jurors reported that anyone had contacted them or that they had a "problem complying with the traditional restrictions of a juror in this and every case."

Accordingly, we find that the judge did not err by refusing to voir dire the jurors as to the complained of contacts. Furthermore, defendant's motion for mistrial was properly denied.

VII

Defendant contends that the sentence is excessive. He does not complain about the length of the term imposed; instead, he challenges each of the aggravating factors found by the judge and argues that "the mitigating factors recognized by the court substantially outweigh the aggravating factors. . . ." This error, defendant argues, resulted in the judge denying his motion to apply N.J.S.A. 2C:44-1f(2), which would have allowed the judge to sentence defendant as convicted of third degree offenses rather than second degree offenses.

In order to sentence defendant to a term appropriate for an offense one degree lower, the trial judge had to be "clearly convinced" that the mitigating factors "substantially" outweighed the aggravating factors. N.J.S.A. 2C:44-1f)(2). A judge may utilize this sentencing option only when the interests of justice compel. State v. Mirakaj, 268 N.J. Super. 48, 50-51 (App. Div. 1993). Defendant was convicted of two second degree crimes--conspiracy and attempted theft by deception--and four fourth degree crimes--two counts each of falsifying records and falsifying medical records. The sentencing judge found the aggravating and mitigating factors in equipoise on each second degree crime, therefore, he sentenced defendant to seven years to run concurrent to each other. On each fourth degree crime, the judge sentenced defendant to nine months to run concurrent with each other and concurrent with the sentences for the second degree crimes. The aggregate term is seven years. We have been informed that defendant has been released from prison and that his parole term will expire at the end of this year.

The judge found as aggravating factors: the risk that defendant will commit another offense; a substantial likelihood that defendant is involved in organized criminal activity; and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(3), (5) and (9). The judge also specifically added the following aggravating factor to the judgment of conviction: "the need to protect society." The judge also emphasized the need to deter defendant and others.

As mitigating factors, the judge found that: defendant has compensated or will compensate the victims of his conduct; defendant had no prior delinquencies or prior criminal activity; and defendant was likely to respond to probationary treatment. N.J.S.A. 2C:44-1b(6), (7) and (10). The judge explained that defendant was educated and could be rehabilitated. The judge also declared that defendant's "first offender" status was "a weighty" mitigating factor. Nevertheless, the judge found that neither the aggravating nor mitigating factors predominated.

As to sentencing defendant as a third degree offender, the judge explained:

A lesser sentence would depreciate the seriousness of the defendant's offense.

It did involve a breach of public trust. The defendant was a licensed individual bound by standards of public trust. There is a hint that defendant was involved, at least during that period of time, in some sort of organized activity.

He hired employees with known criminal histories involving medicaid and medicare fraud, but this involves too much speculation to be a weighty factor. I just mention it.

"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Our review of a sentence involves a three step process.

Appellate review of sentencing is a three-step process requiring the reviewing court to determine (1) whether the legislatively fixed sentencing guidelines were followed, (2) whether the aggravating factors and mitigating factors found by the trial court were based upon competent, credible evidence in the record and (3) whether application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[State v. Burton, 309 N.J. Super. 280, 290 (App. Div.), certif. denied, 156 N.J. 407 (1998).]

Accord State v. Megargel, 143 N.J. 484, 493 (1996); State v. Roth, 95 N.J. 334, 365-66 (1984). We do not second guess the sentencing judge. Burton, supra, 309 N.J. Super. at 290. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; rather, it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." Ibid.

We are satisfied that the record provides a strong factual basis for each factor identified by the judge. The record also amply supports the evaluation of each factor. The complex nature of the fraud and the duration of the fraud would have allowed the judge to find that the aggravating factors outweighed the mitigating factors. The judge found otherwise and the decision is supported by the record. The converse is not true. That is, the nature of the fraud and its duration do not support a finding that the judge was clearly convinced that the mitigating factors substantially outweighed the aggravating factors. In short, we discern no basis to disturb the sentence.

VIII

Defendant contends that the judge's imposition of the fines and restitution violated his constitutional due process rights, right to trial by jury, and right against double jeopardy. The judge imposed fines of $50,000 on each second degree crime, totaling $100,000, and $97,975.27 in restitution.

Defendant contends that the imposition of fines and restitution violated his right against double jeopardy. He emphasizes that the New Jersey Board of Optometrists (the Board) had already imposed civil fines and penalties when it permanently revoked his optometry license in 1998. He argues, relying on Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997), and State v. Black, 153 N.J. 438 (1998), that those penalties imposed by the Board were punitive in nature and, therefore, tantamount to a criminal penalty. We disagree.

On October 1, 1998, after an initial decision that was incorporated into its final decision, the Board permanently revoked defendant's license to practice optometry and "assessed" the following penalties on defendant: (1) costs to the State of $34,845.20; (2) a civil penalty of $1,181,600 (or $100 for each of the 11,816 fraudulent insurance claims he had submitted); and (3) the restoration of all monies, but not limited to $498,458, received for claims on 4072 patients that he submitted to any insurance carrier for the performance of serial tonometry. The Board found, among other things, that (1) serial tonometry was not a necessary or appropriate routine done by optometrists in response to their diagnosing retinal deposits or exudates, vitreous floaters or chronic conjunctivitis; (2) defendant was not performing serial tonometry within any known standard of acceptable practice for optometry; and (3) defendant had knowingly submitted thousands of fraudulent insurance claims with the intent that those carriers would rely on the claims and pay defendant. This court affirmed the license revocation and the other penalties.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Womack, 145 N.J. 576, 582, cert. denied, 519 U.S. 1011, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996). The federal constitutional guarantees apply to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969). Protections against double jeopardy in the New Jersey Constitution, N.J. Const. art. I, 11, have been interpreted by our courts to be co-extensive with the protections afforded by the federal clause. Black, supra, 153 N.J. at 443.

Double jeopardy for criminal penalties is generally not implicated by penalties also imposed in civil and administrative proceedings. Ibid. When those civil penalties turn out to be punitive rather than remedial, however, the civil and criminal penalties may not be imposed for the same conduct. Merin v. Maglaki, 126 N.J. 430, 440-45 (1992); State v. Darby, 246 N.J. Super. 432 (App. Div.), certif. denied, 126 N.J. 342 (1991). That is, a civil sanction may be determined to be punitive if either the law pursuant to which the sanction was imposed was intended by the legislature to impose punishment or the impact of the sanction is punitive. Hudson, supra, 522 U.S. at 99, 118 S. Ct. at 493, 139 L. Ed. 2d at 458-59.

In Hudson, the threshold question was whether the civil or administrative assessment constitutes a "criminal punishment." Ibid. To determine whether an assessment imposes a "criminal punishment" or is truly civil in nature, "[a] court must first ask whether the legislature . . . 'indicated either expressly or impliedly a preference for one label or the other.'" Id. at 99, 118 S. Ct. at 493, 139 L. Ed. 2d at 459 (quoting United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742, 749 (1980)). If the legislature has characterized an assessment as civil, the court still must determine "'whether the statutory scheme [is] so punitive either in purpose or effect,' as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Ibid. (quoting Ward, supra, 448 U.S. at 248-49, 100 S. Ct. at 2641, 65 L. Ed. 2d at 749-50, and Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S. Ct. 219, 222, 100 L. Ed. 149, 155 (1956)). The Court explained:

In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S. Ct. 554, 567-568, 9 L. Ed. 2d 644 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

[522 U.S. at 99-100, 118 S. Ct. at 493, 139 L. Ed. 2d at 459.]

"'Only the clearest proof,' however, will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. at 100, 118 S. Ct. at 493, 139 L. Ed. 2d at 459 (quoting Ward, supra, 448 U.S. at 249, 100 S. Ct. at 2641, 65 L. Ed. 2d at 749). The Hudson test was applied to a double jeopardy claim under the New Jersey Constitution by our Supreme Court in State v. Widmaier, 157 N.J. 475, 492-94, 499-500 (1999).

Here, defendant does not offer any indication that the civil penalties imposed were intended to be punitive. In fact, an examination of the two statutes governing the Board's power to impose penalties reveals that the statutory scheme is not punitive either in purpose or effect and does not transform what is clearly intended as a civil remedy into a criminal penalty. First, N.J.S.A. 45:1-12 states:

No podiatrist, optometrist or psychologist and no professional service corporation engaging in the practice of podiatry, optometry or psychology in this State shall charge a patient an extra fee for services rendered in completing a medical claim form in connection with a health insurance policy. Any person violating this act shall be subject to a fine of $100.00 for each offense.

And N.J.S.A. 45:1-22 states:

In addition or as an alternative, as the case may be, to revoking, suspending or refusing to renew any license, registration or certificate issued by it, a board may, after affording an opportunity to be heard:

. . . .

b. Assess civil penalties in accordance with this act;

. . . .

d. Order any person found to have violated any provision of an act or regulation administered by such board to restore to any person aggrieved by an unlawful act or practice, any moneys or property, real or personal, acquired by means of such act or practice; provided, however, no board shall order restoration in a dollar amount greater than those moneys received by a licensee or his agent or any other person violating the act or regulation administered by the board . . . .

It is clear from the face of these statutes that the Legislature intended that the penalties the Board can impose are civil in nature. That is, applying the list in Hudson, supra, 522 U.S. at 99-100, 118 S. Ct. at 493, 139 L. Ed. 2d at 459, they (1) do not involve an affirmative disability or restraint; (2) have not historically been considered punishment; (3) do not come into play only on a finding of scienter; (4) do not promote the traditional aims of punishment, i.e., retribution and deterrence; (5) do not apply to behavior that is already a crime; (6) do not have an alternative purpose to which they may rationally be connected; or (7) do not appear excessive in relation to any alternative purpose assigned.

Moreover, the penalties imposed by the Board are not so punitive in purpose or effect that they could be considered a criminal penalty. The civil fines imposed related to the Board's review of 11,816 insurance claims submitted by defendant for the performance of serial tonometry during the relevant time period, including 4,686 claims for the diagnoses of retinal exudates, vitreous floaters and chronic conjunctivitis. Defendant also argues that the restitution imposed against him by the judge violated his due process right and his right to a trial by jury. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); and State v. Natale, 184 N.J. 458, 466 (2005) (Natale II). No court in New Jersey has decided yet whether Apprendi, Blakely, and Natale II, and the United States Supreme Court's developing Sixth Amendment jurisprudence impact orders of fines and restitution imposed by a criminal judge. There has been some discussion of this issue in the federal circuits, including the Third Circuit. In 2002, the Court of Appeals held that Apprendi did not apply to a restitution order because the federal restitution statute did not specify a maximum amount. United States v. Syme, 276 F.3d 131, 158-59 (3d Cir.), cert. denied, 537 U.S. 1050, 123 S. Ct. 619, 154 L. Ed. 2d 525 (2002). Two years later in United States v. Trala, 386 F.3d 536, 547 n.15 (3d Cir. 2004), the court held that Blakely was not implicated because the amount of money and the amount of restitution were not contested facts. The Supreme Court granted defendant's petition for certiorari and remanded the case to the Court of Appeals for further consideration in light of United States v. Booker, 543 U.S. 200, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). United States v. Trala, ___ U.S. ___, 126 S. Ct. 1078, 163 L. Ed. 2d 849 (2006). It is unclear, however, whether the Court has directed further consideration of the Career Offender Enhancement aspect of the sentence, or the restitution order, or both.

The courts that have squarely addressed the question have generally decided that Apprendi and Blakely do not apply to restitution, because Apprendi and Blakely dealt with a determinate sentencing scheme rather than a restitution statute that had no set maximum limit. Like the federal restitution statute, our Legislature has not set a prescribed statutory maximum for restitution. N.J.S.A. 2C:43-3. Moreover, the amount of restitution imposed by the judge was within the scope of the crimes as they were charged against defendant in the indictment. In fact, the amount of restitution is less than the value presented at trial. Finally, the judge did not approach the $150,000 statutory maximum amount set for the imposition of fines. N.J.S.A. 2C:43-3a(2). Therefore, we conclude that neither the fine nor the restitution contravened defendant's double jeopardy, due process or jury trial rights.

In summary, we find no basis to disturb the verdict or the sentence. We remand, however, to allow the judgment of conviction to be amended to reflect defendant's conviction of attempted theft by deception rather than theft by deception.

Affirmed; remanded for correction of the judgment of conviction.

 

The judgment of conviction mistakenly lists this count as "theft by deception," and should be amended to accurately reflect defendant's conviction of "attempted theft by deception."

(continued)

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51

A-3102-01T4

April 3, 2006