STATE OF NEW JERSEY v. LIONEL MALDONADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4455-05T14455-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LIONEL MALDONADO,

Defendant-Appellant.

______________________________

 

Argued May 21, 2007 - Decided June 7, 2007

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 05-06-00083-S.

Michael L. Testa, Sr., argued the cause for appellant (Basile & Testa, attorneys; Mr. Testa, of counsel; Michael L. Testa, Jr., on the brief).

Carol Henderson, Assistant Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Charles M. Grinnell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Lionel Maldonado, appeals from his conviction on one count of theft by deception, N.J.S.A. 2C:20-4, for which he was sentenced to two years' probation plus forfeiture of his position as a probation officer and permanent disqualification from holding public office. N.J.S.A. 2C:51-2a(1) and -2d. We affirm.

I

On June 6, 2005, defendant and his live-in girlfriend Marisol Perez were indicted for purposely obtaining property from the state health benefits plan "by creating or reinforcing the false impression that at all relevant times they were married to one another and therefore entitled to enroll the said Marisol Perez in the [plan]." They were also indicted for falsifying records with respect to a health care form completed on September 17, 2001, which indicated that defendant was "widowed" when he had never been married to Marisol. The latter charge was later dismissed during trial.

Defendant filed a motion to dismiss the indictment on the grounds that he had filed a form to remove Marisol from his health plan on April 27, 2000, and that the June 6, 2005 indictment was filed beyond the five-year statute of limitations. N.J.S.A. 2C:1-6b(1). The motion was denied pursuant to a written opinion dated December 22, 2005, and the case proceeded to trial. At trial, defendant sought to introduce evidence that he had filed a discrimination complaint against his employer and that the theft-related charges were filed in retaliation for his complaint. The trial court ruled that the civil rights complaint was irrelevant. Defendant successfully moved to dismiss the second count at the close of the State's case, but the court nonetheless permitted the State to introduce in evidence the September 17, 2001 health benefit application on which that charge had been based. Defendant also unsuccessfully sought to dismiss count one at the close of the State's case. These rulings form the basis of this appeal.

The undisputed evidence at trial established that defendant and Marisol were never legally married. However, the State introduced evidence that from 1990 to 2000, defendant submitted a series of application forms that falsely indicated that Marisol Perez was "Marisol Maldonado" and that she was defendant's wife. Based on these forms, the State paid premiums and provided health and dental coverage for Marisol through June 30, 2000. The State also paid claims for Marisol, including the costs for her pre-natal care and the birth of two children fathered by defendant.

At trial, defendant testified that he believed he and Marisol were married at common law and that he acted in good faith on this belief. That was his defense to the substance of the charges. He did not testify that anyone at his place of employment told him that he was entitled to obtain health or dental coverage for Marisol. He did not testify to any effort to abandon a scheme to defraud the State. Rather, his testimony was that he believed at all times that he was entitled to coverage for Marisol because she was his "wife."

During an open enrollment period in 2000, defendant filled out revised benefit applications for health and dental coverage dated April 27, 2000, which changed his coverage from "family" including Marisol, to "parent and child" excluding Marisol. That form indicated that he and Marisol had "separated" as of July 30, 1999. In his testimony, defendant did not indicate that he filled out this form as a way of withdrawing from or abandoning any prior scheme to defraud the State or even as a way of undoing a prior mistake. Rather he contended he submitted it in the ordinary course to reflect a change in his relationship with Marisol, because they had in fact separated. In short, his entire defense was based on convincing the jury that he believed he and Marisol were married.

The State produced evidence that an application submitted in the ordinary course during an open enrollment period would not take effect for two months. Hence, the State continued to incur expenses and provide coverage to Marisol after April 27, 2000, until July 1, 2000.

According to a Divison of Pensions employee, Nancy Ronaghan, until 1998 the State paid a higher premium for defendant's health insurance coverage because Marisol was included on his policy. In 1998, the system changed to an ASO fee, which was the same regardless of coverage level. The State then paid the cost of any individual claim made. The State paid $8357.67 more in medical premiums for Marisol's coverage, although none of that expense was incurred after 1998. However, defendant's dental plan remained premium-based, which meant that until July 1, 2000, the State was paying a higher premium because Marisol was covered. As a result, the State overpaid $393.86 in dental premiums from 1994 to June 30, 2000. According to Ronaghan's testimony, the dental plan premium was paid each two-week pay period up to June 30, 2000. Therefore, the State would have incurred an additional cost due to defendant's fraud within five years prior to the filing of the indictment on June 6, 2005.

The State also introduced evidence that defendant knew he was not entitled to coverage for Marisol and that he received information that an application completed during the open enrollment period would not take effect immediately. The State presented testimony that employees annually received a booklet from their health plans explaining their coverage, how to change coverage due to a change in family status such as a separation, and when such a change would become effective. Defendant admitted receiving such a book, although he claimed he did not read it. Further, according to witness Kenneth Dunn, the effective date of the open enrollment was announced to employees during the open enrollment period. In other words, defendant would have been notified that if he changed his coverage in April 2000, the change would become effective the following July. Dunn also testified that defendant could have submitted a form at any time to terminate Marisol from his coverage, because "[y]ou can delete a dependent at any time." He need not have waited for an open enrollment period.

II

On this appeal, defendant has raised three points for our consideration:

POINT I: THE TRIAL JUDGE COMMITTED REVERS[I]BLE ERROR IN NOT GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED ON THE STATUTE OF LIMITATIONS OUTLINED IN N.J.S.A. 2C:1-6.

POINT II: THE TRIAL JUDGE COMMITTED REVERS[I]BLE ERROR IN NOT DISMISSING COUNT ONE OF THE INDICTMENT AFTER DISMISSING COUNT TWO OF THE INDICTMENT BY WAY OF MOTION TO ACQUIT PURSUANT TO RULE 3:18.

POINT III: THE TRIAL JUDGE COMMITTED REVERS[I]BLE ERROR IN NOT ALLOWING THE DEFENDANT TO CROSS-EXAMINE THE STATE WITNESS WITH REGARD TO THE DEFENDANT'S CIVIL CASE.

We begin by addressing defendant's statute of limitations arguments which form the basis for his Point One, concerning his motion to dismiss the indictment, and Point Two, concerning his motion to acquit pursuant to Rule 3:18.

Theft by deception is defined as:

A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:

a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind . . . .

[N.J.S.A. 2C:20-4 (emphasis added).]

The statute of limitations applicable to the offense is five years after the crime was "committed." N.J.S.A. 2C:1-6b(1). The statute defines the commission of the crime as follows:

An offense is committed either when every element occurs or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated.

[N.J.S.A. 2C:1-6c (emphasis added).]

Where a series of thefts occur pursuant to a continuing scheme, the thefts may be aggregated to determine the amount stolen for purposes of determining the degree of the crime. N.J.S.A. 2C:20-2b(4) ("Amounts involved in thefts . . . committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense."). In a theft involving a continuing scheme or course of conduct, the statute of limitations runs from the date of the last theft:

Defendant argues that some of the thefts charged may not be prosecuted because of the bar of the five-year statute of limitations. N.J.S.A. 2C:1-6b(1). However, N.J.S.A. 2C:1-6c provides:

An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

Thefts aggregated pursuant to N.J.S.A. 2C:20-2b(4) constitute a single theft. It follows that a theft may be considered a constituent theft so long as the indictment for the aggregated theft is returned within five years after the last constituent theft was committed.

[State v. Childs, 242 N.J. Super. 121, 134 (App. Div.), certif. denied, 127 N.J. 321 (1990).]

We reached the same conclusion in State v. Jurcsek, 247 N.J. Super. 102, 110 (App. Div.), certif. denied, 126 N.J. 333 (1991):

The thefts charged in count 2 encompassed a period from 1979 to 1983. Prior to trial, defendant unsuccessfully sought to dismiss the charges as barred by the statute of limitations. The motion judge held that N.J.S.A. 2C:20-2b(4), which allows aggregation of amounts for the purpose of determining the grade of a theft offense, together with the statute of limitations provision of the Code, showed a legislative intention to treat thefts by deception of the nature here involved as continuing offenses and that the statute of limitations would therefore run from the time of the last theft committed as part of the common scheme. We agree.

[Ibid. (citations omitted).]

In light of this applicable law, and the evidence presented to the Grand Jury, defendant's motion to dismiss the indictment was properly denied. A trial court should not dismiss an indictment unless defendant establishes "the clearest and plainest ground" for doing so, and the "indictment should stand unless it is palpably defective." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984) (quotations and citations omitted). We will not disturb the trial judge's denial of defendant's motion unless we find an abuse of discretion. Id. at 18. We find no abuse of discretion here.

The State's Grand Jury evidence established a long and continuing course of conduct in which defendant repeatedly submitted enrollment forms for health care and dental benefits in which he falsely listed Marisol as his wife. He admitted that they were not legally married and that he submitted the forms in order to obtain coverage for her. The State also presented evidence that over a continuing period of time, Marisol submitted claims and obtained payments for her health care using the coverage defendant obtained for her. Moreover, for a continuing period up to June 17, 2000, the State made payments to cover the cost of health and dental coverage for Marisol. The State also presented evidence that as a result of defendant's fraud and the State's payments, Marisol had the benefit of health and dental coverage until June 30, 2000.

The evidence before the Grand Jury was sufficient to support an indictment for theft by deception pursuant to defendant's continuing scheme or course of conduct. That being so, the value of the thefts would be aggregated and the statute of limitations would run from the date of the June 17, 2000 payment. Therefore the June 6, 2005 indictment was filed timely. Of course, at the time of the indictment, defendant was also charged with continuing the scheme by submitting an additional fraudulent form on September 17, 2001. At the time of the indictment, that also would have extended the starting date for the statute of limitations.

We next turn to defendant's Point Two, asserting his related argument that he was entitled to a directed verdict of acquittal pursuant to Rule 3:18-1. We judge this contention under the standards set forth in State v. Reyes, 50 N.J. 454 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Id. at 458-59.]

The same standard applies to a motion to set aside the verdict after trial. See State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (citing State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).

Defendant contends that after the trial court dismissed the count two charge concerning the September 17, 2001 form, count one should have been dismissed on statute of limitations grounds. He contends that if defendant ever acted with criminal intent (which he denies) "said criminal intent ended on April 27, 2000 when [defendant] affirmatively deleted Marisol Perez" from his health and dental applications. He contends that in submitting the form, he "was withdrawing from any activity to further that crime." In that connection he argues that once he submitted the April 27, 2000 form "he could do nothing to make the actual deletion of Marisol Perez proceed at a faster rate." Thus, he claims he is not criminally responsible for the fact that the State continued to pay premiums for her coverage through June 30, 2000. He also argues that the trial court improperly permitted the September 17, 2001 form to remain in evidence after dismissing count two.

In other words, defendant contends that to find him guilty the jury was required to find that he knew the cancellation would not be effective immediately and that he intended to receive, or cause Marisol to receive, a benefit to which she was not entitled after April 27, 2000. This argument is without merit for several reasons.

On April 27, 2000, defendant completed and submitted a revised application during the open enrollment period. This form indicated that he was applying for parent and children coverage. He listed only his two children as his dependents. In section 5b, "Deletion of Dependent," defendant checked "Separation," listed the "Date of Event" as July 30, 1999, and listed the "Dependent Name" as Marisol Maldonado. Reasonable jurors could conclude that in filling out the form indicating that he had "separated" from Marisol, and in listing her as "Marisol Maldonado," defendant was continuing the fiction that she was his wife. The form continued the false representation that Marisol was his legal dependent for purposes of the plan, that he was married to Marisol, and that they had "separated."

Defendant contends that the April 27, 2000 form is highly relevant in that it cuts off any criminal liability he might have for the State's premium payment on June 17, 2000. We disagree. In enrolling Marisol in the plan as his purported wife, through a series of forms submitted over the years since 1990, defendant purposely set in motion a series of events designed to induce the government to pay premiums for her coverage. The most recent form defendant submitted prior to April 27, 2000, was an application dated February 27, 1997, which listed defendant as married, and reported a child born on February 21, 1997. The State's continuing premium payments, through the end of June 2000, were the direct result of defendant's actions in submitting fraudulent coverage forms and reinforcing the misimpression he had created that he was married.

Even assuming that the April 17, 2000 form was an attempt to put a halt to that series of events, it was ineffective because it was submitted during the open enrollment period, and forms submitted as part of open enrollment would not take effect until the following July 1. Defendant did nothing to correct the false impression that he had created and reinforced over the years, most recently in 1997, that he was married to Marisol. N.J.S.A. 2C:20-4. Hence, the State continued to act on that false impression by continuing her coverage until June 30, 2000.

There was sufficient evidence that defendant knew that he was not married to Marisol and that he knew that he could not list her as his wife unless she was his spouse. Moreover, reasonable jurors could conclude that if defendant had wanted to immediately change his coverage to delete Marisol because of a separation, he would have filled out a form in July 1999 when they separated.

More to the point, if defendant had wanted to repent of his fraud and correct the misimpression he had deliberately fostered over the years, he could have advised the state health benefits system that he and Marisol were not married and could have asked that she be immediately removed from coverage. Defendant, however, testified that he listed Marisol as his wife because he believed they were married, as he understood it. He admitted that they never went through a marriage ceremony and did not have a marriage license. He did not testify that he filled out the April 27, 2000 form in order to try to undo or repudiate a prior fraud. He testified that he filled it out because he and Marisol had "separated." In other words, his defense hinged on convincing the jury that he acted on a good faith if mistaken belief that he and Marisol were married and that he never intended to defraud the State. The jury evidently did not credit this contention.

We next address the admissibility of the forms submitted in 2001. On September 17, 2001, defendant filled out another open enrollment application for health benefits and a form for dental benefits. The health benefits form gave the option of listing marital status, in this order, as single, married, divorced or widowed. Defendant checked the box for "Widowed," which was next to the box for "Divorced." On the dental form he checked the box for "Separation." At the time defendant submitted this form, Marisol "was already deleted" from the state health benefits plan. Although the judge dismissed the criminal complaint against defendant relating to these documents, because defendant did not receive any benefits to which he was not entitled as a result of submitting these forms, he permitted the prosecutor to introduce the forms in evidence in support of the count one charge of theft by deception. We find no error in that decision. Both forms continued the fiction that defendant had once been married to Marisol and could fairly be construed as evidence of a continuation of his fraudulent scheme, in the sense that it was an attempt to conceal his earlier illegal conduct.

Defendant's final argument concerning his civil rights complaint is equally without merit. Defense counsel sought to admit evidence of the civil rights complaint based on the attorney's proffer that defendant would testify that his supervisors told him that he could enroll Marisol in the plan as his wife. But defendant himself gave no such testimony. He admitted that he never consulted with the personnel department at work concerning whether he was entitled to enroll Marisol on his health benefits plan. Hence, there was no factual basis for a claim that his supervisors at work told him that he could enroll her and then betrayed him by complaining about his committing insurance fraud in reprisal for his filing a civil rights suit.

Affirmed.

 

For purposes of the theft statute, "property" is "anything of value" whether tangible or intangible. N.J.S.A. 2C:20-1g. Clearly the insurance coverage itself, which lasted until June 30, 2000, had value even if Marisol did not make any claims within the five-year limitation period. Defendant does not argue that the coverage obtained by misrepresentation was not "property of another." See N.J.S.A. 2C:20-1h.

In an argument not asserted in his brief or at trial, defendant contended at oral argument that the trial court erred in failing to specifically instruct the jury that it must find that defendant knew that Marisol would be covered by his insurance until June 30, 2000, or that the State would make a premium payment after April 27, 2000. Defendant did not request such an instruction. Since this contention was not raised at trial, and was not briefed, we deem it waived. Moreover, the trial court thoroughly and repeatedly instructed the jury as to the need to find that defendant acted purposely and knowingly.

Defendant did not submit a new form every year to obtain health coverage. Employees were not required to submit new forms unless there was a "life change" such as a marriage, birth or divorce, or if, during an open enrollment period, the "employee wishe[d] to change coverage." According to the State's evidence, a "life event" change is processed within one pay period. An open enrollment change takes about two months.

(continued)

(continued)

17

A-4455-05T1

June 7, 2007