STATE OF NEW JERSEY VS. AMGAD A. HESSEIN (11-08-0812, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1693-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMGAD A. HESSEIN,

Defendant-Appellant.
_________________________________

Submitted September 12, 2018 – Decided October 1, 2018

Before Judges Haas and Sumners.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-08-0812.

Adam W. Toraya, attorney for appellant.

Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Milton S.
Leibowitz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Amgad A. Hessein, a physician, and co-defendant Ashraf A.

Sami (collectively defendants) were the subjects of a joint investigation by the

Union County Prosecutor's Office and the Office of the Inspector General of the

United States Department of Health and Human Services regarding alleged

medical billing fraud concerning their patients at Advanced Pain Management

Specialists (APMS). Based upon an affidavit supported by information

concerning inconsistencies in APMS' billing practices from former employees

and patients of APMS, and insurance billing data from Medicare, Medicaid, and

insurance companies, Judge Joseph P. Donohue issued a warrant authorizing a

search of APMS' office, which expressly permitted the seizure of any documents

pertaining to the billing and performance of services provided by defendants,

any person associated with defendants, or APMS from 2005 to 2010.

Among the documents seized were records that, coupled with interviews

of APMS employees, revealed to investigators that defendant was traveling out

of the state when he billed for medical services, which he allegedly provided to

patients in his office. Based upon the newly acquired information, Judge

Donohue issued a second warrant permitting a further search of records in

APMS' office. Consequently, defendants were charged in a seventy-four count

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indictment – defendant was named in thirty-eight of the counts – with an

extensive medical billing fraud scheme involving over more than $1.5 million.

Following his indictment, defendant filed two unsuccessful motions to

suppress warrants authorizing the search and seizure of his office records. Judge

Robert J. Mega denied both motions for reasons set forth in written decisions.

A motion to dismiss the indictment followed, which Judge Mega also denied

and explained in a written decision. Defendant then entered into a plea

agreement with the State, in which he pled guilty before Judge John M. Deitch

to second-degree theft by deception, N.J.S.A. 2C:20-4(a), and second-degree

conspiracy to commit health care fraud, N.J.S.A. 2C:5-2(a)(1), with all of the

remaining counts of the indictment against him dismissed. Before he was

sentenced, defendant's motion to withdraw his guilty plea was denied by Judge

Deitch for reasons explained in a written decision. Judge Deitch sentenced

defendant to an aggregate prison term of eight years, and ordered him to pay

restitution in the amount of $235,093.75 and to forfeit $2,000,000.

Defendant appeals contending:

POINT I
THE COURT ERRED IN DENYING DEFENDANT'S
PRE-SENTENCE MOTION TO WITHDRAW FROM
HIS GUILTY PLEA.

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A. IN CONSIDERING SLATER FACTOR NUMBER
TWO, THE NATURE AND STRENGTH OF
DEFENDANT'S REASONS FOR WITHDRAWAL,
THE COURT ERRED IN FAILING TO ADDRESS
HIS ASSERTION THAT A PROBATIONARY
SENTENCE WAS EXPLAINED TO HIM BY TRIAL
COUNSEL AS A REALISTIC OUTCOME.

B. IN CONSIDERING SLATER FACTOR NUMBER
ONE, THE DEFENDANT'S COLORABLE CLAIM
OF INNOCENCE, THE COURT ERRED IN FAILING
TO CONSIDER HIS CERTIFICATION AND
NUMEROUS ATTACHMENTS THAT HAD BEEN
ATTACHED IN SUPPORT.

C. IN CONSIDERING SLATER FACTORS ONE
AND TWO, THE COURT ERRED IN FAILING TO
APPLY THE LESS STRINGENT STANDARD
WHICH APPLIES TO ALL MOTIONS TO
WITHDRAW A PLEA BEFORE SENTENCING.

D. THE COURT ERRED IN FAILING TO CONDUCT
AN EVIDENTIARY HEARING WHERE THE
DEFENDANT COULD HAVE ESTABLISHED THAT
HIS ATTORNEY TOLD HIM A PROBATIONARY
SENTENCE WAS POSSIBLE.

POINT II
THE COURT ERRED IN ACCEPTING THE
DEFENDANT'S PLEA WITHOUT AN ADEQUATE
FACTUAL BASIS.

POINT III
THE COURT ERRED IN FAILING TO GRANT THE
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT WHEN THE PROSECUTION
WITHHELD CLEARLY EXCULPATORY
EVIDENCE FROM THE GRAND JURY AND

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 PROVIDED MATERIAL MISTATEMENT
REGARDING ITS ROLE.

POINT IV
THE COURT ERRED IN FAILING TO SUPPRESS
THE WARRANTS THAT AUTHORIZED THE
SEARCH AND SEIZURE OF THE DEFENDANT'S
MEDICAL OFFICE BECAUSE THE FIRST
WARRANT WAS A NON-PARTICULAR GENERAL
WARRANT.

POINT V
THE SENTENCE RECEIVED BY DEFENDANT
WAS ERRONEOUS AND EXCESSIVE.

For the reasons that follow, we affirm.

We first address defendant's argument in Point III that Judge Mega erred

in not granting his motion to dismiss the indictment. 1 He argues that the State

unduly influenced the grand jury's decision to indict where an investigating

detective falsely testified that two APMS employees, who claimed defendants

submitted fraudulent billing requests, voluntarily left their employment, and

withheld information that they were civilly suing defendants. He also argues

the prosecutor improperly stated that the State had met its burden of proof by

stating, "there is a prima facie case." We disagree and affirm substantially for

the reasons stated by Judge Mega in his cogent written decision.

1
Defendant's motion raised several issues, but we only address those challenged
on appeal.
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 An indictment is presumed valid and should only be dismissed if it is

“manifestly deficient or palpably defective.” State v. Hogan, 144 N.J. 216, 229

(1996). We review a trial court's decision on a motion to dismiss an indictment

for a clear abuse of discretion. State v. Zembreski, 445 N.J. Super. 412, 424

(App. Div. 2016).

One of the guiding principles to be followed by a court
when considering a motion to dismiss an indictment is
that "a dismissal of an indictment is a draconian remedy
and should not be exercised except on the clearest and
plainest ground." State v. Williams, 441 N.J. Super.
266, 271 (App. Div. 2015) (alteration omitted) (quoting
State v. Peterkin, 226 N.J. Super. 25, 38 (App. Div.) . .
. . Therefore, once returned by a grand jury, an
indictment should be disturbed "only when [it] is
manifestly deficient or palpably defective." State v.
Hogan, 144 N.J. 216, 228-29 (1996).

[Zembreski, 445 N.J. Super. at 424-25.]

While it is clear “the State may not deceive the grand jury or present its

evidence in a way that is tantamount to telling the grand jury a 'half-truth,'"

Hogan, 144 N.J. at 236, the record does not support a conclusion that the grand

jury was misled in the State's presentation to the grand jury.

Although the detective misinformed the grand jurors that the two

employees left on their own and did not advise them that the employees were

suing defendants, the judge correctly found this was insufficient to warrant

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dismissal of the indictment. The judge found "[t]he State presented evidence of

statements made by patients, billing records, and travel records demonstrating

defendant's alleged fraudulent actions and corroborating [the employees']

statements, while providing more than enough evidence to satisfy a prima facie

case against defendants." He also reasoned that the employees' "civil lawsuit

against defendants would not clearly exculpate defendants of any of their

charges or directly negate their guilt on any of the counts in the present

[i]ndictment."

As for prosecutorial misconduct, we detect none, as did Judge Mega. The

prosecutor stated to the grand jury:

And I think one of the things maybe to help you along
is we're looking at, in a lot of these counts we're looking
at knowledge and the inner workings of the office, and
we're not specifically saying we know what's in
Sami's[2] brain, and [Hessein's] brain at all times. But
from the circumstances and the – and the abundance of
the evidence that you look at, that being the patient
statements, that being the worker's statements, that
being the circumstantial evidence surrounds that, that
there is – as it is in the Grand Jury, there is a prima facie
case.

The prosecutor's "prima facie" statement was not an attempt to persuade the jury

the State had met its burden. As the judge noted, the statement was made upon

2
Co-defendant Ashraf A. Sami.
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a juror's inquiry about whether the co-defendant was directly involved in all the

charges that were listed, and, thus, it was a reasonable "attempt to provide the

grand jury with a road map for evaluating all the circumstantial evidence to

determine each defendant's culpability on each of the respective proposed counts

of the [i]ndictment."

In Point IV, defendant contends Judge Mega erred in not granting his

motion to suppress the records seized pursuant to the first search warrant under

the exclusionary rule, State v. Badessa, 185 N.J. 303, 311 (2005), because the

warrant's supporting affidavits lack of specificity. We are unpersuaded.

"[A] search executed pursuant to a warrant is presumed to be valid" and

. . . a defendant challenging its validity has the burden to prove 'that there was

no probable cause supporting the issuance of the warrant or that the search was

otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting

State v. Valencia, 93 N.J. 126, 133 (1983)). "Accordingly, courts 'accord

substantial deference to the discretionary determination resulting in the issuance

of the [search] warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005) (alteration

in original) (quoting Jones, 179 N.J. at 388). When "reviewing a grant or denial

of a motion to suppress [we] must uphold the factual findings underlying the

trial court's decision so long as those findings are supported by sufficient

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credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014)

(citing State v. Elders, 192 N.J. 224, 243 (2007)). We "should reverse only when

the trial court's determination is 'so clearly mistaken that the interests of justice

demand intervention and correction.'" Id. at 425 (quoting Elders, 192 N.J. at

244). "A trial court's interpretation of the law, however, and the consequences

that flow from established facts are not entitled to any special deference.

Therefore, a trial court's legal conclusions are reviewed de novo." Ibid. (citing

State v. Gandhi, 201 N.J. 161, 176 (2010)). Any "doubt as to the validity of the

warrant 'should ordinarily be resolved by sustaining the search.'" Keyes, 184

N.J. at 554 (quoting Jones, 179 N.J. at 389 (2004)).

With these principles in mind, we affirm the denial of defendant's

suppression motion, substantially for the sound reasons set forth in Judge Mega's

thorough written decision. 3 As the judge found, based upon the wide-ranging

allegations of fraudulent billing, the items listed in the warrant all related to

defendant's medical practice, his billing practices, and the storage of these items.

He reasoned that, these facts, combined with the "vast and complex nature and

circumstances of the instant matter permit the usage of generic terms, and the

3
Defendant's motion raised several issues, but we only address those challenged
on appeal.
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[w]arrants properly included the wide array of documentation as potential

evidence of the numerous alleged instances of healthcare fraud, theft and

conspiracy for which defendant[] [was] charged." We agree with the State that

the Fourth Amendment to the United States Constitution "mandates that [a

search warrant's] 'description is such that the officer with . . . [the] warrant can

with reasonable effort ascertain and identify the place intended.'" State v.

Marshall, 199 N.J. 602, 611 (2009) (quoting Steele v. United States, 267 U.S.

498, 503 (1925)). Thus, the judge properly ruled that, under the totality of the

circumstances, the warrant was not impermissibly vague or broad and

sufficiently specified where the items of interest were stored.

We next address defendant's contention in Point II, raised for the first time

on appeal, that Judge Deitch erred in accepting his second-degree health care

fraud guilty plea because it was not supported by a factual basis that he

knowingly billed for services that were not provided. He argues his plea

colloquy acknowledged that he failed to properly oversee his office's billing

through a third-party billing company, which establishes a reckless intent, but

not a knowing intent.

Since the contention is raised for the first time on appeal, we review it

under the plain error standard to determine if the error was "clearly capable of

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producing an unjust result." R. 2:10-2. To sustain a guilty plea to a criminal

offense, Rule 3:9-2 requires that a factual basis must be elicited. "The factual

foundation may take one of two forms; defendant may either explicitly admit

guilt with respect to the elements or may 'acknowledge[] . . . facts constituting

the essential elements of the crime.'" State v. Campfield, 213 N.J. 218, 231

(2013) (alterations in original) (quoting State v. Sainz, 107 N.J. 283, 293

(1987)).

Defendant's argument is belied by the record. During his colloquy, he

admitted to submitting claim forms on diverse dates in 2006 and 2010 with the

intention to obtain compensation for services not rendered. He did not shift

responsibility to a third party or indicate that his conduct was reckless. Thus,

since defendant's contention that he failed to admit he knowingly submitted false

billing claims for payment lacks merit, obviously, no unjust result has occurred.

Turning to Point III, defendant contends Judge Deitch abused his

discretion by misapplying State v. Slater, 198 N.J. 145, 157-58 (2009), when

considering his motion to withdraw his guilty plea under the less stringent

interest of justice standard and made incorrect factual findings. Defendant

maintains that his motion was supported by his certification and numerous

attachments establishing his innocence. However, the main emphasis of his

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request to withdraw his plea was his claim that his counsel misled him to believe

that he would receive probation, not a prison term, and that he was not aware he

would lose his license to practice medicine. Finally, defendant claims the judge

should have conducted an evidentiary hearing before deciding the motion. In

his thorough written decision denying defendant's motion to withdraw his plea,

Judge Deitch applied the four-factor Slater test:

(1) whether the defendant has asserted a colorable
claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of
a plea bargain; and (4) whether withdrawal would result
in unfair prejudice to the State or unfair advantage to
the accused.

[Slater, 198 N.J. at 157-58.]

We affirm substantially for the reasons expressed in the judge's decision. We

add the following brief comments.

Applying the interest of justice standard in evaluating defendant's motion,

the judge viewed his certification as, "nothing but generalities" and not

providing specific, credible facts to support his position that he was innocent.

He rejected defendant's uncertified documents as untrustworthy. The judge

pointed out that the record contradicted his claims that he was not aware he

would lose his medical license or be sentenced to prison. In fact, defendant

responded "yes" to question eight of his plea form that stated, "[a]re you

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pleading guilty to a crime that contains a presumption of imprisonment which

means that it is almost certain that you will go to state prison?"

Lastly, we address defendant's contention in Point V that his sentence was

excessive because Judge Deitch should have found that the mitigating factors

substantially outweighed the aggravating factors, instead of finding the

opposite. The judge applied aggravating factors one and nine, N.J.S.A. 2C:44-

1(a)(1) (nature and circumstances of the offense, including whether it was

committed in especially heinous, cruel, or depraved manner); -1(a)(9) (the need

to deter), and mitigating factors six and seven, N.J.S.A. 2C:44-1(b)(6) (has or

will compensate the victims); -1(b)(7) (no prior criminal history). Defendant

argues the judge should not have applied aggravating factor one because his

offenses were not committed in a "heinous, cruel or depraved manner."

Review of a criminal sentence is limited; a reviewing court must decide

"whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217

N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).

Under this standard, a criminal sentence must be affirmed unless "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

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the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95

N.J. 334, 364-65 (1984)). If a sentencing court properly identifies and balances

the factors and their existence is supported by sufficient credible evidence in the

record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413,

426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). Aggravating

factor one is not limited only to those crimes involving physical injury. See,

e.g., State v. Byard, 328 N.J. Super. 106, 116 (App. Div. 2000); State v.

DeRoxtro, 327 N.J. Super. 212, 226 (App. Div. 2000); State v. Blow, 237 N.J.

Super. 184, 193 (App. Div. 1989).

Because we find support in the record for the judge's findings and the

sentence does not shock our judicial conscience, we are unconvinced that the

judge erred in sentencing defendant.

Affirmed.

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