People v Kabir

[*1] People v Kabir 2006 NY Slip Op 52072(U) [13 Misc 3d 1231(A)] Decided on October 27, 2006 Supreme Court, Bronx County Newman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2006
Supreme Court, Bronx County

The People of the State of New York,

against

Abu Kabir and Bathgate Prescription Center, Inc., Defendants.



90013/05



ROBERT J. GOLDSTEIN, ESQ.

Special Assistant Attorney General

Medicaid Fraud Control Bureau

120 Broadway, 13th Floor

New York, New York 10271-0007

FAX (212) 417-4725

MARK L. FURMAN, ESQ.

Hoffman Einiger & Polland

Attorneys for defendant Bathgate

220 East 42nd Street, Suite 435

New York, New York 10017

FAX (212) 338-0093

ROGER L. STAVIS, ESQ. Stavis & Kornfeld

Attorneys for defendant Kabir

260 Madison Avenue

New York, New York 10016

FAX (212) 679-1844

STANLEY N. LUPKIN, ESQ.

Law Offices of Stanley N. Lupkin

Attorney for defendant Kabir

98 Cuttermill Road

Suite 227 North

Great Neck, NY 11021

Barbara F. Newman, J.

Defendants are charged with one count of grand larceny in the second degree under section 155.40 (1) of the Penal Law and thirteen counts of offering a false document for filing under section 175.35 of the Penal Law, in connection with an alleged scheme related to Medicaid claims.[FN1] In the instant application the People move for an order compelling defendant Abu Kabir to provide handwriting exemplars. Defendants oppose.

The Court has reviewed the applicable law and the following documents: (1) People's Notice Of Motion dated September 26, 2006; (2) Affirmation of Robert J. Goldstein, Special Assistant Attorney General with the Medicaid Fraud Control Unit (hereinafter "MFCU") of the New York State Attorney General's Office, submitted in support of the People's motion, dated September 26, 2006 (hereinafter "Goldstein Aff."); (3) undated Affidavit of Gregory McNally, submitted in support of the People's motion (hereinafter "First McNally Aff."); (4) People's proposed Order, which is annexed to the Notice Of Motion; (5) Affirmation of Mark L. Furman, Esq., attorney for defendant Bathgate Prescription Center, Inc., submitted in opposition to the People's motion, dated October 3, 2006 (hereinafter "Furman Aff."); (6) defendants' Exhibit; (7) Affidavit of Gus R. Lesnevich, submitted in opposition to the People's motion, dated October 2, 2006 (hereinafter "Lesnevich Aff."); (8) People's Reply Affirmation In Re Handwriting Exemplar dated October 5, 2006 (hereinafter "Reply Aff."); (9) Affidavit of Gregory McNally dated October 4, 2006; (10) Supplemental Affidavit of Gregory McNally dated October 5, 2006; and, (11) People's Exhibits.

On October 10, 2006, the Court issued an interim written decision and order granting the People's motion to the following extent: defendant Abu Kabir was directed to appear at the New York State Attorney General's Office, 120 Broadway, 13th Floor, New York, New York, at a date and time to be agreed upon by the parties, but not later than October 13, 2006; at that place and time Kabir was to meet with representatives of the Attorney General and provide specimens of his handwriting as required by said representatives, including writing in his true handwriting, on and with material provided in script and/or print such numerals, words, phrases, sentences and [*2]paragraphs as were dictated to him by said representatives and in the form and quantity required by said representatives; the People having stated that they "do not intend to use at trial that defendant spontaneously correctly (or incorrectly, if there are any) spelled certain words or abbreviations that appear on prescriptions that are common to pharmacy practice," were precluded from offering at trial evidence that Kabir spontaneously spelled, either correctly or incorrectly, any of the words or abbreviations which he writes in response to the dictation of the Attorney General's representatives while providing specimens of his handwriting in compliance with the interim order; and, indicating that a full written decision and order would follow. This is that decision and order.

Procedural and Factual Background

So far as is relevant to the Court's determination of the instant motion, the first count of the indictment, by which defendants are charged with grand larceny in the second degree, alleges:

The defendant ABU KABIR, individually, and as high managerial agent of defendant BATHGATE PRESCRIPTION CENTER, INC., . . . with intent to deprive another of property and to appropriate the same to himself, defendant BATHGATE PRESCRIPTION CENTER, INC., and third persons, wrongfully took, obtained and withheld such property, valued in excess of $50,000, from an owner thereof, as follows:

The defendant ABU KABIR submitted and caused to be submitted to Computer Sciences Corporation, fiscal agent of the State of New York, in the name and in behalf of defendant BATHGATE PRESCRIPTION CENTER, INC., a pharmacy provider under the New York State Medical Assistance (Medicaid) Program, electronic invoices which constituted claims under the Medicaid Program, which falsely stated that the amounts listed were due and that prescription refills had been dispensed to Medicaid recipients in accordance with the authorization of the prescribing doctor and in compliance with applicable federal and state laws and regulations, when, as defendants knew, they had not been so dispensed and the amounts listed were not due.

Defendants were arraigned on the indictment in 2005. In September 2005, in their response to Kabir's motion to compel the filing of a bill of particulars, the People alleged, inter alia, that "[t]he People intend to prove that the increases in the number of refills were not authorized by the particular physician and therefore the billings for those claims were fraudulent . . . ." (People's undated Response to Abu Kabir's Request for a Bill of Particulars at 2-3). One method of proving these allegations at trial, of course, might entail the presentation of evidence that defendants had billed Medicaid for refills in excess of the number of refills which were authorized by the physicians who wrote the prescriptions.

In July and August 2006, at the behest of defense counsel, the People reviewed some of the materials which they had previously provided to defendants during the discovery process. On August 28, 2006, while accompanied by defense counsel, Kabir voluntarily provided thirty-two pages of handwriting exemplars in response to the People's request therefor. Kabir provided those exemplars by handwriting on various documents including prescription forms (see Furman Aff. at 2) letters, numerals, words and phrases which were dictated to him by the [*3]People's representatives (see Reply Aff. at 4). Shortly thereafter the People were allegedly told by a person who was familiar with Kabir's handwriting that some of the prescriptions had actually been written by Kabir. The People then advised the defense and the Court that they intend to prove at trial that Kabir forged some of the prescriptions; in other words, evidence of the forgeries of prescriptions by Kabir and of defendants' submission to Medicaid of invoices for reimbursement for refills of these same prescriptions, which defendants knew to be forged, would now be part of the proof of defendants' guilt of count one of the indictment. The instant motion to compel Kabir to provide additional handwriting exemplars followed.

Discussion

On the instant motion the People argue that the exemplars which Kabir provided on August 28, 2006, are insufficient for their handwriting expert to offer an opinion as to the author of the prescriptions in question, and therefore "it is necessary to obtain an [additional] exemplar that focuses on the writing that appears in these documents." (Goldstein Aff. at 2). According to the expert whose opinion the People propose to offer, "In order for me to be able to provide an opinion with [a] reasonable degree of scientific certainty concerning specific documents, I need to have exemplars that mirror these documents. . . . [The additional exemplars] should, so far as practicable, parallel the questioned documents in size, paper type, pen type, and writing style." (First McNally Aff. at 1-2). Further, the People's proposed Order, which is annexed to the Notice Of Motion, includes the directive that Kabir "shall write . . . such words, phrases[,etc.,] as are dictated to him by [the People's] representatives."[FN2] In short, the People contend that in order for their expert to perform an adequate analytic comparison of the handwriting on the prescriptions in question to Kabir's handwriting, they require that Kabir provide additional exemplars on prescription forms identical to the questioned prescriptions by handwriting specific words and phrases that appear on the questioned prescriptions as those words and phrases are dictated to him by the People's representatives.

Defendants argue that the People's motion should be denied on several grounds. Defendants allege that the People first suspected that Kabir had forged prescriptions "as far back as six years ago"(Furman Aff. at 3) and, therefore, could have sought the kinds of exemplars which they now seek on, if not long before, August 28, 2006. Defendants' expert in handwriting analysis avers that the exemplars which Kabir provided on August 28, 2006, are sufficient to permit the People's expert to form an opinion as to whether Kabir forged the prescriptions in question with a reasonable degree of scientific certainty and that therefore, the provision of additional exemplars is unnecessary. (See Lesnevich Aff.). Finally, defendants contend that compelling Kabir to provide specimens of his handwriting on prescription forms by writing the same words and phrases that appear on the questioned prescriptions as those words and phrases are dictated to him by the People's representatives would violate Kabir's privilege against self-incrimination under the Fifth Amendment to the United States Constitution. In reply, the People allege that they had no reason to suspect that Kabir had forged prescriptions until after August 28, 2006, and reiterate their expert's averments as to the need for exemplars which "mirror" the [*4]prescriptions. In addition, the People argue that neither compelling Kabir to provide specimens of his handwriting on prescription forms nor compelling him to do so by writing specific words and phrases as they are dictated by the People's representatives would violate his Fifth Amendment privilege, and that Kabir has waived the privilege in any event by voluntarily and without objection providing exemplars in the presence of counsel under the same conditions on a previous occasion.

The People have shown good cause why the instant motion may be made at this stage of the proceedings. While a motion for an order contemplated under C.P.L. § 240.40(2)(b)(vi) should be made within forty-five days after arraignment, "for good cause shown [it] may be made at any time before commencement of trial." C.P.L. § 240.90(1). Defendants' allegations that the People suspected that Kabir had forged prescriptions at a much earlier stage of the proceedings is based upon a conclusion apparently derived from defense counsels' interpretation of language contained in copies of internal MFCU memoranda.[FN3] Moreover, even assuming arguendo that defense counsels' interpretation of the memoranda were accurate, the fact that the People may have suspected that Kabir forged prescriptions by handwriting does not mean that they were required to immediately seek exemplars or be estopped from doing so thereafter. Whether or not the People may have had earlier suspicions, the evidence submitted on the instant motion indicates that they did not plan to utilize Kabir's alleged acts of forgery as a method of proving an element of the crimes charged until a witness familiar with Kabir's handwriting made new evidence available on August 28, 2006. Subsequently, the People advised defendants and the Court of their intent to pursue that method of proof and moved for exemplars which they hoped would enable their expert to develop further evidence sufficient to prove such element beyond a reasonable doubt. Thus, the People have shown good cause why the instant motion for additional handwriting exemplars may be made at this time, more than forty-five days after arraignment.

The fact that Kabir has already provided handwriting exemplars in this case is not determinative of the instant motion for additional exemplars. The scope of discovery in a criminal proceeding in the State of New York is governed entirely by the provisions of article 240 of the Criminal Procedure Law. Sacket v Bartlett, 241 AD2d 97, 101-102 (3rd Dep't 1998) ("All three categories [of discovery], i.e., disclosure required by the constitution, required by fundamental fairness and mandated by legislative policy, are codified within CPL article 240, which defines the breadth of criminal discovery [citations omitted].") There is no provision in C.P.L. § 240.40 [FN4] or elsewhere in article 240 which limits the People to a single application for an order directing the defendant to provide handwriting exemplars or which proscribes either the number of occasions on which the provision of exemplars may be ordered or the number of exemplars which must be provided on each occasion. Nor do defendants cite any other statutory [*5]authority for the imposition of such limits or proscriptions, nor any judicial authority holding that the provision of multiple exemplars violates constitutional limitations, per se.

In any event, the People have shown that the exemplars which were provided on August 28, 2006, are insufficient to enable their expert to offer an opinion as to whether Kabir forged prescriptions as opposed to other kinds of documents, thereby necessitating the additional exemplars. Also, defendants have failed to show how, if at all, providing additional exemplars would constitute a hardship for Kabir. Therefore, the fact that Kabir has already provided handwriting exemplars does not foreclose the People from moving for an order compelling him to provide additional exemplars, nor is it reason for the Court to deny said motion in light of the surrounding circumstances. See Matter of Pregent v Hynes, 73 AD2d 722 (3rd Dep't 1979) (reversing order which granted application of nursing home administrator, who had previously provided generic handwriting exemplars, to quash subpoena pursuant to which she was compelled to provide additional exemplars in the identical words and phrases which appeared on the patient medical files in question).

Compelling Kabir to provide specimens of his handwriting on prescription forms, and to handwrite on those forms specific words and phrases identical to the forms, words and phrases which were allegedly used in the commission of the crimes charged would not violate Kabir's Fifth Amendment privilege. "Handwriting samples are ordinarily considered physical and non-testimonial evidence and, accordingly, are not protected by the Fifth Amendment privilege against self-incrimination. See United States v Euge, 444 U.S. 707, 713-714 (1980); Gilbert v California,388 U.S. 263, 266-267 (1967) [other citations omitted]." United States v Carrasquillo, 2004WL102774 at 4 (S.D.NY 2004). Assuming he does so at the request of the prosecution or in compliance with a court's directive, neither the medium on which a defendant is asked or directed to provide an exemplar nor the particular words and phrases which a defendant is asked or directed to write on that medium transform the exemplar from an identifying physical characteristic into testimonial evidence. See United States v Jacobowitz, 877 F.2d 162, 168-169 (2nd Cir. 1989) (defendant did not have right under Fifth Amendment to refuse People's request that he provide exemplar in the same name as that which was allegedly used in commission of crime); United States v Doe (Schwartz), 457 F.2d 895, 896 (2nd Cir. 1972) ("furnishing of handwriting exemplars [does] not constitute testimony within the protection of the self-incrimination clause . . . . even when a witness is asked to furnish specimens of his writing of names or words that had been used in the commission of a crime"); United States v Doe (Devlin), 405 F.2d 436, 438 (2nd Cir. 1968) (defendant did not have Fifth Amendment right to refuse directive of foreman of grand jury that he provide exemplar on form identical to the document which was allegedly used in commission of crime). When provided under these conditions, the exemplar remains a mere identifying physical characteristic because what is written is determined by the person taking it, not the person writing it. Because the content of the writing is not the product of the operation of the writer's mind the exemplar does not become testimonial, as it would if it were intended to communicate the writer's response to an inquiry or statement.[FN5] Since Kabir would only be writing what the People's representatives direct him to [*6]write and only upon documents which they direct him to write upon, compelling him to provide handwriting exemplars would not violate his Fifth Amendment privilege.

On the other hand, an exemplar taken by dictation may entail a communicative response constituting testimonial evidence if the misspelling of words commonly used by laymen or the correct spelling of words of art or jargon not commonly used by laymen, which are written in the exemplar in response to the dictation, are identical to those misspellings or correct spellings which appear in an allegedly incriminating document.[FN6] It is precisely for this reason that use of the dictation methodology has often been found to violate the Fifth Amendment. See, e.g., United States v Kallstrom, ___ F. Supp.2d ___, 2006WL2536297 at 2 (E.D. Mich. 2006) ("requiring the defendant to write a statement dictated by a government agent . . . will constitute a testimonial act [which abridges his Fifth Amendment privilege] because it involves an intellectual exercise in which the defendant will be quizzed on how to spell the dictated words, and he will be expected to respond to that query with a written answer"); United States v Matos, 990 F. Supp. 141, 144 (E.D.NY 1998) ("Requiring a person to provide an exemplar from dictation that does not provide the spelling of the dictated words [violates the Fifth Amendment because it] is the functional equivalent of requiring the person to state how he spells the dictated words.") "This finding, however, does not compel the exclusion of those exemplars without misspelled words, even though they too were obtained through dictation." United States v Carrasquillo, 2004WL102774 at 5 (the Court granted the defendant's motion to suppress with respect to those exemplars which contained misspelled words and denied the motion with respect to those exemplars which contained no misspellings). It follows therefore that, given appropriate safeguards, exemplars may be taken by dictation without contravening a defendant's privilege against self-incrimination.

Indeed, in the instant matter just such a safeguard is suggested in the People's application, wherein they state: "The People do not intend to use at trial that the defendant spontaneously correctly (or incorrectly, if there are any) spelled certain words or abbreviations that appear on the prescriptions that are common to pharmacy practice." (Reply Aff. at 5). Thus, the Court will direct that the exemplars may be taken by dictation, but preclude the People from using the exemplars produced thereby as communicative or testimonial evidence. In other words, the exemplars may be used solely for the purpose of enabling the People's, or defendants', expert to form an opinion and testify at trial with a reasonable degree of scientific certainty as to whether Kabir wrote the prescriptions in question without reference to any misspelled words of common usage or the correct spelling of words of art or jargon which may appear in the exemplars.

Finally, the People are incorrect to aver that because Kabir voluntarily provided handwriting exemplars by dictation in the presence of counsel on a previous occasion he is foreclosed from asserting the privilege against self-incrimination to object to the use of the same methodology in the taking of additional exemplars now. "The Fifth Amendment right against self-incrimination must be claimed when self-incrimination is threatened. Ordinarily, it cannot be reserved for future constitutional battles. [citation omitted]" United States v Tyler, 281 F.3d 84 (3rd Cir. 2001) (affirming the denial of the defendant's motion to suppress a letter which he [*7]had voluntarily written to a judge in a prior criminal proceeding). This does not mean, as the People contend, that "defendant has waived his right to complain" about the use of dictation in the subsequent taking of additional exemplars. (Reply Aff. at 4). By failing to assert the privilege when he provided the original exemplars, Kabir forfeited its benefits as to only those exemplars. See Minnesota v Murphy, 465 U.S. 420, 428 (1984). Since Kabir is now being compelled to provide additional exemplars, they constitute potential testimonial evidence distinct from the original exemplars and, therefore, a threat of self-incrimination which did not exist when the original exemplars were provided and against which he may now assert the privilege.

Accordingly, for all of the foregoing reasons, the People's motion for an order compelling defendant, Abu Kabir, to provide handwriting exemplars is granted to the extent stated in the interim decision and order, and the People are precluded from offering at trial evidence that Kabir spontaneously spelled, either correctly or incorrectly, any of the words or abbreviations which he writes in response to the dictation of the Attorney General's representatives while providing specimens of his handwriting in compliance with this decision and order or the interim decision and order.

The foregoing constitutes the decision and order of the Court.

Dated: Bronx, New YorkE N T E R:

October, 2006

HON. BARBARA F. NEWMAN

Acting Justice of the Supreme Court

By facsimile transmission:

FAX (516) 482-1168 Footnotes

Footnote 1:Three of the original sixteen counts of offering a false document for filing were dismissed by decision and order of Hon. Phylis Skloot Bamberger, dated June 20, 2005.

Footnote 2:In other words, Kabir would be required to write down words and phrases recited by the representatives, as opposed to copying from existing documents.

Footnote 3:The People have explained that the memoranda in question "focused on the use of a stamp purchased by Mr. Kabir bearing . . . [the] name, license number and Medicaid provider number" of one of the physicians whose name appeared on some prescriptions. (Reply Aff. at 3).

Footnote 4:Pursuant to C.P.L. § 240.40(2)(b)(vi), "[u]pon motion of the prosecutor, and subject to constitutional limitation, the court . . . may order the defendant to provide non-testimonial evidence. Such order may . . . require the defendant to . . . provide specimens of his handwriting."

Footnote 5:For example, in the instant matter if Kabir were asked or directed not to write the name, "Abu Kabir," but to write "your name" or "the name of the pharmacist who submitted a particular invoice to Medicaid," the writing would be testimonial evidence entitled to Fifth Amendment protection.

Footnote 6:For example, if Kabir were to correctly write the names of medications as they are spelled on the questioned prescriptions, the unusual spelling of which names would be unfamiliar to the general public, the exemplar might constitute testimonial evidence.