NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4361-19
A-4371-19
A-4374-19
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
August 25, 2021
v.
APPELLATE DIVISION
YVONNE JEANNOTTE-
RODRIGUEZ,
Defendant-Respondent.
_________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
MARTA I. GALVAN,
Defendant-Respondent/
Cross-Appellant,
_________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
LISA FERRARO,
Defendant-Respondent/
Cross-Appellant.
_________________________
Argued June 3, 2021 – Decided August 25, 2021
Before Judges Ostrer, Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Indictment No. 19-06-
0446.
Jay McCann, Chief Assistant Prosecutor, argued the
cause for appellant and cross-respondent State of New
Jersey (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Jay McCann, of counsel and on
the briefs).
Nathan Kittner argued the cause for respondent
Yvonne Jeannotte-Rodriguez (Nathan Kittner,
attorney; Nathan Kittner and Jonathan Mincis, on the
brief).
Amie E. DiCola argued the cause for
respondent/cross-appellant Marta I. Galvan (The Law
Offices of Fusco & Macaluso, PC, attorneys; Amie E.
DiCola, on the brief).
Joseph Lewis Nackson argued the cause for
respondent/cross-appellant Lisa Ferraro (Joseph Lewis
Nackson, attorney; Joseph Lewis Nackson, of counsel
and on the brief; Jeffrey Zajac, on the brief).
The opinion of the court was delivered by
OSTRER, P.J.A.D.
A-4361-19
2
In these three appeals, consolidated for our opinion, the State contends
the trial court wrongly dismissed (without prejudice) a six-count indictment
against Lisa Ferraro, M.D., Yvonne Jeannotte-Rodriguez, and Marta Galvan.
During the relevant time period, Rodriguez served as a medical assistant in Dr.
Ferraro's medical office, and Galvan was the office manager and worked on
billing. The State alleged Rodriguez practiced medicine without a license; Dr.
Ferraro and Rodriguez fraudulently billed for Rodriguez's services; and Galvan
joined Rodriguez and Dr. Ferraro in conspiring to commit this fraud. The
State asserts it presented sufficient evidence to survive dismissal and urges us
to reinstate the indictment in full. Dr. Ferraro and Galvan cross-appeal,
contending the court should have dismissed the indictment with prejudice.
We affirm. The trial court did not abuse its discretion in dismissing the
indictment without prejudice. Most significantly, the prosecutor failed to
adequately and accurately instruct the grand jury about what a medical
assistant may do without encroaching upon the licensed practice of medicine.
And, because the law does not clearly draw a line around a medical assistant's
allowable activities, prosecuting someone for crossing the line may violate the
right to fair warning.
The prosecutor also improperly referred to additional evidence that he
did not present to the grand jury, and presented a questionable analysis of the
A-4361-19
3
amount of money involved in the charged offenses. And the indictment lacked
sufficient detail to give defendants a fair opportunity to mount a defense.
I.
The indictment at issue in this appeal is not the first one the State
obtained against the three defendants. In May 2018, the State secured a three -
count indictment charging: Rodriguez with third-degree practicing medicine
without a license, N.J.S.A. 2C:21-20 (count one); Dr. Ferraro with third-degree
health care claims fraud, N.J.S.A. 2C:21-4.3 (count two); and Rodriguez, Dr.
Ferraro, and Galvan with third-degree conspiracy to commit health care claims
fraud, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-4.2 (count three). About a year
later, the trial court dismissed the indictment without prejudice, holding it was
"palpably deficient in its failure to produce any testimony before the grand
jury to support the dates set forth in the indictment." 1
The State then resubmitted the case, calling David Menendez, an
insurance fraud investigator for Horizon Blue Cross/Blue Shield who did not
testify in the first presentment, and Passaic County Prosecutor's Office
Detective Lisa Patterson, who played excerpts of her recorded interviews of
1
The parties did not provide us the transcript of the first grand jury or the
court's decision dismissing the first indictment. But, in dismissing the second
indictment, the court reviewed its reasons for dismissing the first one. We rely
on that.
A-4361-19
4
Galvan and Dr. Ferraro. The State also granted Rodriguez's request to appear
before the grand jury.
Patterson testified that Dr. Ferraro and Galvan actually prompted the
investigation. They complained that Rodriguez, who had worked for many
years as Dr. Ferraro's medical assistant, was getting paid to redirect Dr.
Ferraro's patients to another doctor's office where Rodriguez had gone to work.
Rodriguez had been a licensed physician in the Dominican Republic, but had
not achieved licensure in New Jersey; although she passed various written
examinations, she was unable to secure and complete the prerequisite
residency.
Before the grand jury, Patterson presented evidence regarding the charge
that Rodriguez held herself out as a licensed physician, or practiced medicine
without a license. Patterson confirmed with the state regulating boards that
Rodriguez was not licensed to practice medicine nor was she licensed as a
"nurse . . . nurse practitioner . . . [or] a physician's assistan[t]." Shortly after
leaving Dr. Ferraro's office, Rodriguez posted on Facebook a picture of herself
in a white lab coat and a stethoscope. In Spanish, she assured her "patients"
that she did not "abandon" them and supplied her new location.
Based on Patterson's interviews with five patients who switched
practices, Patterson testified Rodriguez gave physical exams, administered
A-4361-19
5
allergy shots, and prescribed medications, and her services were billed to
insurers under Dr. Ferraro's unique identification number. One patient, A.A., 2
told Patterson that she believed Rodriguez was a doctor, and she knew
Rodriguez was a doctor in the Dominican Republic. Rodriguez checked her
blood pressure, and "ha[d] her sit down to examine her."
Another patient, H.M., told Patterson that she thought Rodriguez was a
doctor, and when she called the office "they said [']Dr. Rodriguez['] and I told
them that I wanted to be seen by Dr. Rodriguez and they said [']okay.[']" H.M.
said that Rodriguez examined her ears, and checked her throat with a light;
checked her heart with a stethoscope and her knee reflexes with a hammer; and
took her blood pressure.
M.A. likewise told Patterson that Rodriguez checked her ears; took
blood pressure and temperature; and inquired about the purpose of her visit.
M.A. said that Rodriguez would ask Dr. Ferraro "if she could switch [M.A.'s]
. . . medication, and [Rodriguez] for the most part would ask Dr. Lisa [Ferraro]
what to do for [M.A.]." M.C. said that Rodriguez presented herself as "Dr.
Rodriguez" when she came into the room, dressed in a white doctor's coat.
Patterson also presented her recorded interview with Marta Galvan, the
office manager. Galvan stated Rodriguez worked as a medical assistant; "she
2
We use initials to protect the patients' privacy. R. 1:38-3(a).
A-4361-19
6
met with the patient and [got] all the patient history and stuff like that."
Although Galvan acknowledged Rodriguez did not have a medical license in
the United States, she referred to her as "Dr. Rodriguez" because "she obtained
a doctoral degree in [the] D.R.," and "[p]atients would contact her by Dr.
Rodriguez." Galvan admitted Rodriguez touched the patients, and she wrote in
patients' charts, and typed patients' notes in the office's digital record-system
once that was implemented. Galvan admitted Rodriguez would enter codes for
billing under Dr. Ferraro's name (but she did not say that Rodriguez
transmitted the claims to insurers). Galvan also stated Rodriguez wrote
prescriptions using Dr. Ferraro's pad. Galvan's answer regarding how often
Rodriguez did that was inaudible.
In a video interview with Dr. Ferraro that Patterson presented, Dr.
Ferraro described Rodriguez's role:
[S]he would get the ready patients [sic]. She learned
how to do a complete history, physical, for all the
medications. You know, everything . . . normally you
would teach something, and then the physical exam,
and we would get our assessment and our plan, and
. . . that's how it started and that's how it went.
Patterson elicited the following additional details:
DET. PATTERSON: Okay. So Yvonne [Rodriguez]
would be in with a patient doing the exam, blood
pressure, heart. What else is there?
A-4361-19
7
DR. FERRARO: Well, the history, the physical
exams, get the vital signs, temperature, pulse, blood
pressure, and then look in their ears, check their
throat, listen to their lungs. You know if they had
issues with their legs, check their legs. And then write
down for the physical findings, what the physical
findings are.
And what GED3 – assessment is what you think
the patient has. Asthma. You know. Uncontrolled
blood pressure. And then what the plan would be.
You know, (indiscernible) treatment, blood pressure
medicine, get some blood work, send her to
pulmonary, you know, so you have . . . the whole
thing from the beginning to the end.
DET. PATTERSON: Yvonne did that?
DR. FERRARO: Right.
Regarding prescriptions, Dr. Ferraro said, "I would give [Rodriguez]
some signed prescriptions and then she would check with me if it was
appropriate for that amount." And, regarding how Rodriguez identified
herself, Dr. Ferraro said, "She usually called herself Dr. Rodriguez, Dr.
Yvonne." Also, the staff referred to her as "Dr. Rodriguez." Dr. Ferraro
agreed that the patients thought Rodriguez was their doctor. Rodriguez usually
wore a lab coat with a stethoscope.
Dr. Ferraro knew Rodriguez was not a licensed medical doctor in the
United States. Still, when speaking with patients, Dr. Ferraro would refer to
3
The record does not define this acronym.
A-4361-19
8
Rodriguez as "Dr. Rodriguez or Dr. Yvonne." Although Dr. Ferraro said
"most of the time" she would come into the room to go over Rodriguez's
impressions of the patient with the patient present, Dr. Ferraro acknowledged
there were times when she did not do that, and instead submitted billing orders
based solely on Rodriguez's exam and impressions.
Rodriguez told the grand jury that her effort to secure a license was
stymied by her failure to obtain a residency. Instead, she worked as a medical
assistant, first at St. Joseph's Hospital, and then for Ferraro. Rodriguez was
registered with the American Registry of Medical Assistants, but had recently
discovered her registration had lapsed.
Rodriguez denied that other staff members called her "Dr. Rodriguez."
She agreed the patients called her that, but maintained she always corrected
them and reminded them Dr. Ferraro was their physician. Rodriguez denied
any knowledge of billing practices, including Galvan's role. Rodriguez
admitted she interviewed patients; provided health care information to
patients; touched patients; took blood pressure; and wrote in patient files
(without signing her name). But she denied diagnosing patients or
representing herself as a physician. She said she used the term "my patients"
in her Facebook because "anybody at the office considers their patients their
patients. Not as their doctor, just as anybody you would help to take care of."
A-4361-19
9
She defended her garb in the Facebook photo by stating she sometimes wore a
white coat at work, and she used a stethoscope when taking a patient's blood
pressure.
Menendez described how his "audit" of a random sample of 100 patients'
files led him to conclude that Dr. Ferraro's office received over $150,000 in
payments for services that Rodriguez performed, but which the office billed in
Ferraro's name. By analyzing the files' handwritten notes, Menendez
concluded that two individuals conducted office visits and treated patients
(although he also said "multiple people in the office . . . were seeing patients
and treating patients"). Menendez found three patients who said they only saw
Rodriguez at Dr. Ferraro's practice, and they identified Rodriguez "as Dr.
Rodriguez, and stated that she was their doctor." One patient told Menendez
that Rodriguez treated her when Dr. Ferraro was not physically present in the
office. By examining patient notes, Menendez claimed to be able to
distinguish between Rodriguez's and Ferraro's handwriting. Using handwriting
style as a guide, he concluded that Rodriguez wrote the notes, and therefore,
treated, forty-five of the one hundred patients. He then assumed that forty-five
percent of all Horizon's payments to Dr. Ferraro's office between January 2012
and May 2017 — $153,776 — were for services that Rodriguez performed.
Menendez called that an "overpayment."
A-4361-19
10
Menendez also opined about the allowable scope of practice of medical
assistants. As a former investigator with the New Jersey Division of
Consumer Affairs before working with Horizon, Menendez said he was
familiar with the structure of the medical profession in New Jersey. Menendez
said medical assistants "are permitted to administer certain injections which
could be billable under the doctor," but not allergy shots; and medical
assistants could not render any diagnoses or perform physical examinations.
He said that Rodriguez's notes were the type he would expect a medical doctor
to write, such as history of present illness, chief complaint, and "listing of
different systems that were checked, such as the lungs, heart, head, eyes, ears,
nose and throat, extremities, [and] abdomen."
In the prosecutor's instructions to the grand jury on the practicing-
medicine-without-a-license charge, the prosecutor did not attempt to define
what the practice of medicine entailed, or what a medical assistant may or may
not do under the law. He referred instead to Menendez's testimony on the
subject.
The prosecutor also referred to evidence that was not presented to the
grand jury, in explaining that a non-practitioner commits health care claims
fraud in the second-degree if the person commits five or more acts of health
A-4361-19
11
care claims and the benefit obtained or sought was at least $1000. The
prosecutor told the grand jurors:
So we heard the testimony in the case that the claims
were submitted. Dr. . . . Ferraro submitted the claims.
It was under her provider number, but it was services
that, some of the services were rendered by Yvonne
Rodriguez, and the insurance company didn't know
that, and this involves more than five claims,
regardless of what your deliberation is there's no
doubt that it's more than five claims, 'cause there's
thousands of claims, and that the aggregate amount
was over a — at least a thousand dollars.
[(Emphasis added).]
The grand jury returned a six-count indictment. It charged Rodriguez
with second-degree health care claims fraud by a non-practitioner, N.J.S.A.
2C:21-4.3 (count one); second-degree theft by deception, N.J.S.A. 2C:20-4(a),
(b) (count two); and third-degree practicing medicine without a license,
N.J.S.A. 2C:21-20(a) ("engages in that practice") or (c) ("holds himself [or
herself] out to the public or any person as being eligible to engage in that
practice") (count three). The indictment charged Dr. Ferraro with second-
degree health care claims fraud by a practitioner, N.J.S.A. 2C:21-4.3 (count
four); and second-degree theft by deception, N.J.S.A. 2C:20-4(a), (b) (count
five). And, the indictment charged all defendants with second-degree
conspiracy to commit health care claims fraud, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:21-4.3 (count six).
A-4361-19
12
All defendants moved to dismiss the indictment. Dr. Ferraro's counsel
took the laboring oar in argument. He challenged the sufficiency of evidence
presented. He contended the State's failure to include specific dates when
Rodriguez allegedly treated patients denied defendants fair notice and the
ability to defend. He also challenged Menendez's methodology for calculating
the allegedly fraudulent claims. Counsel minimized the probative value of
Rodriguez's Facebook posting. He also argued the grand jury process was
flawed because the State failed to present a licensed physician to differentiate
between the allowable scope of practice of a physician and of a medical
assistant. Rodriguez's counsel noted that she was on maternity leave for an
extended period of time, which could call into question the soundness of
Menendez's handwriting analysis and overpayment calculation for services
allegedly performed by Rodriguez. The State evidently was not aware of her
four-month absence.
The prosecutor argued that the evidence was sufficient to support the
counts; and the State was not obliged to provide dates and names. He asserted
that Rodriguez, as someone who did not hold any license, "shouldn't be
treating patients and she shouldn't be writing in . . . files." He suggested that
"documenting the services rendered" constituted "practicing medicine." He
also asserted that Dr. Ferraro could not delegate patient-related tasks to
A-4361-19
13
Rodriguez. "Even if [Dr.] Ferraro was there, she can't direct Rodriguez to do
something with these patients, because she's not . . . a licensed member of a
profession that can operate under the direction of a physician." The prosecutor
also highlighted that Dr. Ferraro "signed prescriptions in blank for Rodriguez."
The prosecutor stated that defendants were free to present an expert to
dispute Menendez's methodology, but had not done so (prompting Galvan's
defense counsel to respond the State bore the burden to show Menendez's
methods were valid; it was not the defense's burden to show they were not).
The prosecutor admitted that the State did not review or seize patient files; and
interviewed patients could not recall the dates of service. He argued that
Galvan and Rodriguez obtained a benefit from the health care claims fraud and
theft by deception by receiving their salaries.
In dismissing the indictment, the trial judge identified three flaws in the
grand jury process. First, the prosecutor improperly referred to evidence that
was not presented to the grand jury by referring to "thousands of claims" of
health care claims fraud.
Second, the evidence the State did present was insufficient. The court
noted that Menendez's analysis was too speculative, because it consisted of
"inferences drawn from unfounded inferences leading to a further inference."
There was no proof Rodriguez or Galvan obtained a financial benefit. And
A-4361-19
14
there was inadequate evidence regarding the scope of practice of a medical
assistant.
Third, the indictment lacked sufficient specificity regarding dates of
treatment and the names of patients to provide defendants notice and a fair
opportunity to defend.
The court specifically relied on the first point in dismissing count one,
charging Rodriguez with second-degree health care claims fraud by a non-
practitioner. The prosecutor's statement to the grand jury referred to a key
element of the crime: that the person "knowingly commit[] five or more acts
of health care claims fraud and the aggregate pecuniary benefit obtained or
sought to be obtained is at least $1,000." N.J.S.A. 2C:21-4.3(c). The court
held that, by referring to "thousands of claims," the prosecutor
"inappropriately impinged upon the independent function of the grand jury to
deliberate, weigh the evidence, and determine whether or not there was prima
facie evidence of the crime alleged." "For that reason alone," the court
dismissed count one, charging Rodriguez with second-degree health care
claims fraud by a non-practitioner.
The court dismissed the theft-by-deception count against Rodriguez
because "there was no evidence to show that . . . Rodriguez purposely obtained
the property of another." The court disagreed with the State's argument to the
A-4361-19
15
grand jury that Rodriguez's benefit came in the form of her salary; the court
noted there was no testimony that Rodriguez's "salary in any manner
whatsoever was conditioned upon" Rodriguez submitting claims.
The court dismissed the practicing-medicine-without-a-license count
against Rodriguez for multiple reasons: "there was no evidence presented to
the grand jury by any witness or documentation as to what legally permissible
duties and responsibilities were of a medical assistant"; Menendez's limited
testimony on the subject was inadequate; the State should have identified the
patients and dates when Rodriguez allegedly practiced medicine without a
license; and the Facebook post and some patients' reference to Rodriguez as
"Dr." was insufficient to prove she held herself out as a licensed physician.
In dismissing the health-care-claims-fraud and theft-by-deception
charges (counts four and five) against Dr. Ferraro, the court specifically relied
on the prosecutor's comment that he was aware of "thousands" of instances of
fraud. The judge held that "clearly infringed upon the grand jury's decision -
making function."
Regarding the conspiracy charge against all defendants, the court first
noted the indictment did not specify whether the parties allegedly conspired to
commit health care claims fraud by a practitioner, N.J.S.A. 2C:21-4.3(a), or a
non-practitioner, N.J.S.A. 2C:21-4.3(c). The judge concluded, as a legal
A-4361-19
16
matter, that Galvan and Rodriguez could not conspire to violate the former.
Furthermore, the court concluded that the reference to "thousands" of claims
tainted the sixth count and required dismissal; and there was "no evidence to
demonstrate[] that defendant Galvan . . . knowingly engaged in committing
healthcare claims fraud."
The State appeals, challenging the dismissal of each count of the
indictment. The State argues:
POINT I
BECAUSE THE STATE PRESENTED AMPLE
EVIDENCE TO SUPPORT EACH COUNT OF THE
INDICTMENT, THE JUDGE BELOW
IMPROPERLY GRANTED DEFENDANT[]S[']
MOTION TO DISMISS.
POINT II
THE COURT BELOW ABUSED ITS DISCRETION
BY DISMISSING COUNT ONE BASED ON [THE]
PROSECUTOR'S CHANCE REMARK WHICH DID
NOT INVADE THE GRAND JURY'S
INDEPENDENCE.
POINT III
THE COURT COMMITTED PLAIN ERROR BY
CONFUSING THE GRADING REQUIREMENTS
FOR A PRACTITIONER (DEFENDANT FERRARO)
WITH A NON-PRACTITIONER (DEFENDANT
RODRIGUEZ) IN DISMISSING COUNT FOUR OF
THE INDICTMENT.
A-4361-19
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POINT IV
THE COURT BELOW ABUSED ITS DISCRETION
BY MISCHARACTERIZING TESTIMONY OF
[THE] STATE'S WITNESS MEN[EN]DEZ,
IMPERMISSIBLY IMPOSED A REQUIREMENT
FOR EXPERT TESTIMONY, AND ERRED IN
DISMISSING COUNT SIX.
POINT V
THE COURT BELOW REFUSED TO GIVE THE
STATE THE BENEFIT OF EVERY INFERENCE
AND IMPROPERLY SUBSTITUTED ITS OWN
OPINION AS TO HOW THE CASE SHOULD HAVE
BEEN PRESENTED.
POINT VI
THE COURT BELOW ABUSED ITS DISCRETION
BY THE BASELESS DISMISSAL OF COUNT FIVE
OF THE INDICTMENT CHARGING DEFENDANT
FERRARO WITH THEFT BY DECEPTION.
POINT VII
THE COURT BELOW ERRED IN DISMISSING
COUNT SIX: CONSPIRACY TO COMMIT
HEALTHCARE CLAIMS FRAUD.
Dr. Ferraro and Galvan cross-appeal, arguing the trial court erred by not
dismissing the indictment with prejudice.
A-4361-19
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II.
A.
The grand jury fulfills a dual role under our Constitution: to decide if
there is probable cause that a crime was committed, and to protect the innocent
against unfounded charges. State v. Shaw, 241 N.J. 223, 235 (2020); State v.
Bell, 241 N.J. 552, 560 (2020). Though the grand jury is an arm of the court,
we reluctantly and sparingly review the grand jury's actions to protect its
independence. Shaw, 241 N.J. at 229-30, 239. A court may intervene "only
on the clearest and plainest ground, and only when the indictment is manifestly
deficient or palpably defective." Bell, 241 N.J. at 560 (quoting State v.
Twiggs, 233 N.J. 513, 531-32 (2018)).
However, the court will act "when necessary to ensure the fairness and
integrity of grand jury proceedings." Shaw, 241 N.J. at 230. That need to
intervene may arise when the evidence presented to the grand jury is
insufficient to support the charge. The threshold for judicial interference on
that ground is high, because the factual threshold for indictment is low. "A
trial court . . . should not disturb an indictment if there is some evidence
establishing each element of the crime to make out a prima facie case." State
v. Morrison, 188 N.J. 2, 12 (2006).
A-4361-19
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A court may also intervene in the case of "prosecutorial misconduct."
Bell, 241 N.J. at 560-61. However, not any prosecutorial misstep will do. It
must be so extreme that it "clearly infringes" on the grand jury's "decision -
making function," id. at 560 (quoting State v. Murphy, 110 N.J. 20, 35 (1988)),
or it "impinge[s] on a grand jury's independence," id. at 561 (alteration in
original) (quoting State v. Francis, 191 N.J. 571, 587 (2007)). That may occur
when a prosecutor incorrectly or misleadingly states the law. Ibid. Or it may
occur when the prosecutor fails entirely to instruct the grand jury on an
essential element of the offense, State v. Majewski, 450 N.J. Super. 353, 366
(App. Div. 2017), or fails to explicate an element of the offense, where failing
to do so would "leave purely legal issues open to speculation by lay people" on
the grand jury, State v. Brady, 452 N.J. Super. 143, 166 (App. Div. 2017).
A court may also act if the indictment does not clearly and in sufficient
detail "apprise a defendant of 'that against which he must defend.'" State v.
Lisa, 391 N.J. Super. 556, 578 (App. Div. 2007) (quoting State v. Spano, 128
N.J. Super. 90, 92 (App. Div. 1973), aff'd, 64 N.J. 566 (1974)), aff'd, 194 N.J.
409 (2008). After all, "[t]he primary purpose of an indictment is to in form the
defendant of the nature of the offense charged against him so he may
adequately prepare his defense and at the same time protect himself against
another indictment for the same offense." State v. Rios, 17 N.J. 572, 603
A-4361-19
20
(1955). An indictment may not be so general that a petit jury could find a
defendant guilty of an offense the grand jury did not charge. State v. Boratto,
80 N.J. 506, 519 (1979).
We review the appeal of the dismissal of an indictment for an abuse of
discretion. Bell, 241 N.J. at 561; Morrison 188 N.J. at 5. "[T]he trial court's
'decision should be reversed on appeal only [if] it clearly appears that the
exercise of discretion was mistaken.'" Bell, 241 N.J. at 561 (quoting State v.
Abbati, 99 N.J. 418, 436 (1985)). We may also affirm the dismissal on
grounds other than those the trial court adopted. Brady, 452 N.J. Super. at
165; State v. Shaw, 455 N.J. Super. 471, 481 (App. Div. 2018), aff'd, 241 N.J.
223 (2020). But "[w]hen the decision to dismiss relies on a purely legal
question . . . we review that determination de novo." Twiggs, 233 N.J. at 532.
B.
Applying these principles, we conclude that the most significant defect
in the grand jury process was the prosecutor's failure to adequately and
accurately instruct the jury about what a medical assistant, as an unlicensed
medical professional, may do, and what activities encroach upon the licensed
practice of medicine. The prosecutor's failure tainted the grand jury's decision
to indict Rodriguez for the unlicensed-practice-of-medicine by "engag[ing] in
A-4361-19
21
that practice." N.J.S.A. 2C:21-20(a). 4 But because the grand jury indicted
Rodriguez in a single count for "engag[ing] in that practice," N.J.S.A. 2C:21 -
20(a) or "hold[ing] h[er]self out . . . as being eligible to engage in that
practice," N.J.S.A. 2C:21-20(c), the entire count must fail — there is no
knowing if the grand jury would have indicted solely on the "holding out"
charge. The prosecutor's failure to instruct on the scope of practice al so
tainted the remaining counts, which depended on a finding that Dr. Ferraro's
practice falsely billed for services that only she was licensed to perform, but
which Rodriguez performed instead.
Other allied medical professionals, such as advanced practice nurses and
physician assistants, are permitted to engage in activities that obviously also
fall within the practice of medicine. See, e.g., N.J.S.A. 45:11-49(a)
4
N.J.S.A. 2C:21-20, in relevant part, states a person commits a third-degree
crime if he or she:
[K]nowingly does not possess a license or permit to
practice medicine and surgery or podiatric medicine,
or knowingly has had the license or permit suspended,
revoked or otherwise limited by an order entered by
the State Board of Medical Examiners, and he [or
she]:
a. engages in that practice;
....
c. holds himself [or herself] out to the public or any
person as being eligible to engage in that practice.
A-4361-19
22
(permitting an advanced practice nurse to "initiat[e] laboratory and other
diagnostic tests," "prescrib[e] or order[] medications and devices" as
authorized and to "prescrib[e] or order[] treatments"); N.J.S.A. 45:9-
27.16(b)(2), (4) (allowing a physician's assistant to give injections an d write
prescriptions, as delegated by a licensed physician); N.J.S.A. 45:9-27.16(a)(2)
(permitting a physician's assistant to suture a wound). See also In re
Promulgation of N.J.A.C. 13:35-6.14, 205 N.J. Super. 492, 495 (App. Div.
1985) (noting that "the practice of physical therapy . . . overlaps with some
aspects of the practice of medicine"). Yet, doing so does not constitute the
crime of unlicensed practice of medicine. We held in State v. Campione, 462
N.J. Super. 466, 496 (App. Div. 2020), that even when a licensed physician's
assistant violated the Physician's Assistant Licensing Act by engaging in
activities without required supervision — specifically, prescribing controlled
dangerous substances, N.J.S.A. 45:9-27.19(a) — the physician's assistant could
be sanctioned administratively, but not prosecuted for the crime of unlicensed
practice of medicine.
The complicating factor in this case is that no New Jersey statute
establishes a licensing scheme for medical assistants. Nor has the Board of
Medical Examiners comprehensively delineated in its regulations the allowable
scope of medical assistants' activities.
A-4361-19
23
Yet, the Board has recognized the role of medical assistants by
authorizing "certified medical assistants" to administer "subcutaneous and
intramuscular injections and performance of venipuncture," but not allergy
injections. N.J.A.C. 13:35-6.4; see also Div. of Consumer Affairs,
Administrative Order No. 2021-06 and Waiver No. 2021-02, COVID
Immunization Administration by Certified Medical Assistants (last visited July
29, 2021) (permitting certified medical assistants to administer COVID-19
vaccinations notwithstanding that N.J.A.C. 13:35-6.4(d) states that medical
assistants may not administer an experimental drug that lacks Food and Drug
Administration approval) (available at https://www.njconsumeraffairs.
gov/COVID19/Documents/DCA-AO-2021-06_DCA-W-2021-02.PDF). A
"certified medical assistant" is defined as someone who has satisfied the
educational and training requirements in the regulation, and maintains a
current certification from one of several listed non-governmental certifying
bodies, although the list is non-exhaustive. N.J.A.C. 13:35-6.4(a)(2). The
"certified medical assistant" who administers injections must also "wear a
clearly visible identification badge indicating his or her name and credentials."
N.J.A.C. 13:35-6.4(c)(5).
The Board has also permitted physicians to delegate to "an unlicensed
assistant" "the administration of an appropriate physical modality" — such as
A-4361-19
24
heat, cold and whirlpool baths — provided various conditions are satisfied.
N.J.A.C. 13:35-6.14. 5 For example, the physician must direct the assistant; the
physician must see the patient before the modality is performed; and the
physician must remain on the premises when it is performed. Ibid.
At the very least, then, a medical assistant, if certified, may administer
certain injections without committing the crime of practicing medicine without
a license. And an unlicensed assistant — presumably including medical
assistants — may perform certain physical modalities in a physician's office,
although that "might be considered as constituting the practice of medicine,
falling within the broad definition of 'any method of treatment of human
ailment, disease, pain, injury, deformity mental or physical condition.'" In re
Promulgation of N.J.A.C. 13:35-6.14, 205 N.J. Super. at 498 (quoting N.J.S.A.
45:9-5.1). However, the Board possessed the authority under its general rule-
making authority, N.J.S.A. 45:9-2, to permit unlicensed assistants to perform
those functions. Ibid. And the Board expressly stated that unlicensed
employees performing modalities were "not deemed by the Board to be the
practice of medicine." Id. at 497 (quoting 17 N.J.R. 837(a) (Apr. 1, 1985)).
5
In an earlier version of the regulation, assistants were also permitted to
administer "ultrasound, ultraviolet rays, cold quartz rays and electro-magnetic
rays." 17 N.J.R. 837(a) (Apr. 1, 1985) (codified at N.J.A.C. 13:35-6.14(b)
(1985)). The Legislature then passed a law prohibiting physicians from
delegating such tasks to employees who were not licensed health care
providers. L. 1990, c. 68 (codified at N.J.S.A. 45:9-22.10).
A-4361-19
25
Evidently, the Board has not formally outlined the other allowable
activities of unlicensed medical assistants, whether certified or not. That
contrasts with regulatory bodies in other states. For example, New York
regulators, though stating that a "medical assistant" (whether certified or not),
is not a licensed or recognized title, have stated that a licensed physician may
delegate to unlicensed medical assistants certain tasks that do not "require the
exercise of medical judgment and assessment," or that are not "specifically
restricted to licensed professionals." Utilization of Medical Assistants, New
York State Education Department (Dec. 2019), http://www.op.nysed.gov/prof/
med/medmedicalassistants.htm. Permitted tasks include:
• Secretarial work such as assembling charts or
assisting with billing
• Measuring vital signs
• Performing ECGs [electro-cardiograms]
• Assisting an authorized practitioner, under the
direct and personal supervision of said practitioner,
to carry out a specific task that does not require
medical judgment or decision making
• Removing sutures or staples under the supervision
of a physician or other appropriately licensed
person, provide[d] that the patient is evaluated, at a
minimum, immediately before the procedure by an
appropriately licensed professional
• Act[ing] as [a] scribe and enter[ing] History and
Physical information, chief complaint, medications,
allergies, and family history into a chart or
Electronic Medical Record and assisting patient in
filling out self-report questionnaire
A-4361-19
26
• Collecting and preparing [certain specified]
laboratory specimens and transcribing results
without interpreting or assessing [them]
• Performing basic hearing and vision tests
• Providing prepared family education and
instruction
• Changing or applying wound dressings (not casts)
• Applying [an] allergen patch test but not
interpreting it
[Ibid.]
Other state laws expressly address the role of unlicensed medical assistants.
See, e.g., Cal. Bus. & Prof. Code §§ 2069-2071 (Deering 2021); Cal. Code
Regs. tit. 16, § 1366.3(c) (2021) (defining "qualified medical assistant"). 6
6
Despite their unlicensed status, medical assistants evidently have become an
important part of the staff in physicians' offices and other settings. According
to the United States Bureau of Labor Statistics, roughly 725,000 medical
assistants were employed in the United States in 2019, Occupational Outlook
Handbook, U.S. Bureau of Labor Statistics, https://www.bls.gov/ooh/
healthcare/medical-assistants.htm (last visited July 29, 2021) [hereinafter
"Handbook"]; and over 17,000 in New Jersey in 2020, May 2020 State
Occupational Employment and Wage Estimates – New Jersey, U.S. Bureau of
Labor Statistics, https://www.bls.gov/oes/current/oesnj.htm#29-0000 (last
visited July 29, 2021). Consistent with New York's regulatory advice, the
Handbook states that medical assistants typically "[r]ecord patient history and
personal information[;] [m]easure vital signs, such as blood pressure[;] [h]elp
physicians with patient examinations[;] [g]ive patients injections or
medications as directed by physicians and as permitted by state law[;]
[s]chedule patient appointments[;] [p]repare blood samples for laboratory tests[;
and] [e]nter patient information into medical records." See also Thomas
Bodenheimer et. al, Expanding the Roles of Medical Assistants, Who Does
What in Primary Care?, JAMA Internal Med. 174(7) (July 2014), (noting that
"emerging roles" of medical assistants, who are "not licensed but work under
the license of a physician," include "health coaching, and team documentation
(also called clinical scribing)"); Susan A. Chapman and Lisel K. Blash, New
A-4361-19
27
New Jersey regulators have not charted the boundaries of a physician's
authority to delegate tasks to an unlicensed medical assistant. However, we
are persuaded that a physician has authority, inherent in his or her license, to
delegate certain "ministerial tasks" to medical assistants, and other unlicensed
staff. See 16 N.J.R. 2065(a) (Aug. 6, 1984) (the Board of Medical Examiners,
in its rule proposal, referring to "the ministerial task of applying certain
modalities, after a medical judgment has been made" they were indicated).
But a physician may not delegate tasks that require the exercise of medical
judgment and assessment (although that may be easier to say than to
implement) or that encroach on tasks specifically assigned to other licensed
professionals. What specific tasks a physician may delegate should best be
defined by the Legislature and the expert regulators of the profession.
"Indeed, we have recognized that the [Board of Medical Examiners] has been
delegated the authority to draw a line 'between services which
nonprofessionals could perform and those which must be limited to licensed
health care providers.'" N.J. State Ass'n of Nurse Anesthetists, Inc. v. N.J.
State Bd. of Med. Exam'rs, 372 N.J. Super. 554, 562 (App. Div. 2004)
Roles for Medical Assistants in Innovative Primary Care Practices , Health
Serv. Res. 52:1, Part II: 383-406 (Feb. 2017) (studying the role of medical
assistants at fifteen sites across the country, including one in New Jersey).
A-4361-19
28
(quoting In re Promulgation of N.J.A.C. 13:35-6.14, 205 N.J. Super. at 498),
aff'd, 183 N.J. 605 (2005).
However, the failure of the Legislature or regulators to draw a clear line
marking the full scope of a medical assistant's allowable activities raises a
significant hurdle to prosecuting someone for crossing the line. 7 "Persons
must receive fair warning that certain behavior is criminal." State v. Riley,
412 N.J. Super. 162, 183 (Law Div. 2009). As Justice Holmes stated long ago,
"Although it is not likely that a criminal will carefully consider the text of the
law before he murders or steals, it is reasonable that a fair warning should be
given to the world in language that the common world will understand, of what
the law intends to do if a certain line is passed." McBoyle v. United States,
283 U.S. 25, 27 (1931).
The "fair warning" requirement is manifest in the rule of lenity, the void -
for-vagueness doctrine, and the due process bar to prosecuting someone for
conduct that "neither the statute nor any prior judicial decision has fairly
disclosed to be within its scope." United States v. Lanier, 520 U.S. 259, 266
7
We do not comment on the impact of this lack of clarity on the Board of
Medical Examiners' civil authority to revoke the license of a physician who
"[h]as permitted an unlicensed person or entity to perform an act for which a
license . . . is required." N.J.S.A. 45:1-21(n). See State v. Afanador, 134 N.J.
162, 170 (1993) (stating "courts give criminal laws sharper scrutiny and more
exacting and critical assessment under the vagueness doctrine than they give to
civil enactments").
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29
(1997). "[T]he touchstone is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time that the defendant's
conduct was criminal." Id. at 267.
We recognize that, despite this gray area of the law, there are some
things that are black or white. For example, we assume it "reasonably clear"
that medical assistants may not prescribe medicine or diagnose illness (as
opposed to other health care professionals who are licensed and specifically
authorized to do so). Cf. N.J.S.A. 45:9-18 (stating, for purposes of N.J.S.A.
45:9, that a person "shall be regarded as practicing medicine and surgery" if
the person undertakes "to diagnose . . . or prescribe for any human disease,
pain, injury, deformity or physical condition"). 8
8
By citing N.J.S.A. 45:9-18, we do not imply that civil law necessarily
provides fair warning of the criminal law's meaning. See, e.g., Lisa, 194 N.J.
at 411 (holding that "sufficient notice of potential criminal liability [for
manslaughter] cannot 'be found in emanations from a scholarly treatise [the
Restatement (Second) of Torts] that has never made its way into New Jersey
substantive criminal law'") (quoting Lisa, 391 N.J. Super. at 579); State v.
Thompson, 402 N.J. Super. 177, 201-05 (App. Div. 2008) (holding that civil
Conflict of Interest Law did "not provide sufficient notice that the
unreasonable appearance of impropriety may lead to a defendant's conviction
of a crime" of official misconduct). Rather, deeming a person who diagnoses
disease or prescribes medication as someone who practices medicine as set
forth in N.J.S.A. 45:9-18 comports with "ordinary and well-understood
meaning[]" and, "[a]bsent any explicit indications of special meanings," it
defines with reasonable clarity what it means for a person, not otherwise
licensed, to engage in the practice of medicine under N.J.S.A. 2C:21-20(a).
See Afanador, 134 N.J. at 171 (rejecting vagueness challenge, stating that
"[a]bsent any explicit indications of special meanings, the words used in a
A-4361-19
30
However, the prosecutor did not instruct the grand jury to limit itself to
such clear encroachments into the practice of medicine. Instead, the
prosecutor relied upon the testimony of a witness, Horizon Blue Cross/Blue
Shield's fraud investigator. There were two problems with that.
First, the prosecutor — not a witness (especially one not offered as an
expert in the law) — is the grand jury's legal advisor. See Brady, 452 N.J.
Super. at 166 (stating "in the first instance, the prosecutor must clearly and
accurately explain the law to the grand jurors"). The prosecutor may not
abdicate that role.
Second, Menendez's testimony fell short of identifying "reasonably
clear" areas of authorized and unauthorized practice of medical assistants.
Menendez stated that medical assistants may not perform examinations (yet,
medical assistants arguably may be utilized to take blood pressure, take vitals,
or administer an ECG), and Menendez stated that Rodriguez's notes covered
items he would expect a physician to address — such as the history of present
statute carry their ordinary and well-understood meanings"). We cannot say
the same, for example, about the statement in N.J.S.A. 45:9-5.1 that, for
purposes of N.J.S.A. 45:9, the "'practice of medicine and surgery'" also
includes "any method of treatment of human ailment, disease, pain, injury,
deformity, mental or physical condition." It is not "reasonably clear" that
performing "any method of treatment" constitutes a crime as applied to
medical assistants, because the Board has expressly permitted persons n ot
otherwise licensed to perform some treatments, and we infer that unlicensed
persons may perform others at a physician's direction.
A-4361-19
31
illness, and chief complaint and different systems that were checked (yet,
evidently, medical assistants may inquire about a patient's information, history
and complaints, and record the readings and answers).
Even assuming that certain functions unquestionably fall outside the
scope of a medical assistant's allowable activities, such as diagnosing illness or
prescribing medication — and there was some evidence that Rodriguez
evaluated patients and filled out scrips — the grand jury was led to believe that
Rodriguez encroached on the practice of medicine by doing much more:
interviewing patients, eliciting their histories and complaints, taking vital
signs, providing information to patients, and writing in charts. "[I]t [ is] 'no
answer to say that the evidence before the grand jury was sufficient to support
an indictment on some other theory.'" Lisa, 194 N.J. at 411-12 (quoting Lisa,
391 N.J. Super. at 581). We have no confidence that the grand jury would
have indicted Rodriguez under N.J.S.A. 2C:21-20(a) — "engag[ing] in that
practice" — had it been properly instructed. To sustain the indictment
nonetheless would rob the grand jury of its "screening function." See Shaw,
241 N.J. at 243. In sum, the absence of clear and adequate instructions tainted
the grand jury's decision to indict Rodriguez for engaging in the practice of
medicine by an unlicensed person under N.J.S.A. 2C:21-20(a).
A-4361-19
32
We recognize that the absence of instructions did not directly impact the
charge that Rodriguez held herself "out to the public or any person as being
eligible to engage" in the practice of medicine under N.J.S.A. 2C:21-20(c).
And there was "some evidence" upon which the grand jury could rely in
charging an offense under subsection (c) — including the evidence of
Rodriguez's Facebook post depicting her clad in a lab coat and stethoscope and
referring to her "patients," and the statements from a patient and Dr. Ferraro
that she used the "Dr." title, notwithstanding her explanations to the contrary.
See Campione, 462 N.J. Super. at 497 (stating that, to survive a motion to
dismiss an indictment, it was enough for the State to produce "some evidence"
that physician's assistant "presented himself as a physician to . . . patients by
referring to himself as a medical doctor"); cf. N.J.S.A. 45:9-18 (stating, for
purposes of N.J.S.A. 45:9, that a "person shall be regarded as practicing
medicine" if the persons uses "'Dr.' . . . and who, in connection with such title
. . . holds h[er]self out as being able to diagnose, treat, operate or prescribe").
However, the grand jury did not indict Rodriguez in a separate count
under subsection (c). Rather, the grand jury indicted Rodriguez in a single
count, alleging she "did engage in that practice [of medicine] or did hold
herself out to the public or any person as being eligible to engage in that
practice." (Emphasis added). But "separate and distinct offenses cannot be
A-4361-19
33
charged in the same count of an indictment." State v. N.J. Trade Waste Ass'n,
96 N.J. 8, 21 (1984).
The two offenses charged under N.J.S.A. 2C:21-20 are "separate and
distinct" because they have different elements and require different proofs.
See State v. Krieger, 285 N.J. Super. 146, 153 (App. Div. 1995) (finding
duplicitous a single indictment count charging violation of N.J.S.A. 2C:29-3(a)
or 3(b), which were "[a]lternative crimes with disparate elements"). When two
distinct offenses are charged in a single count, "there is no way of knowing" if
a petit jury returning a general verdict was unanimous as to both offenses.
Trade Waste, 96 N.J. at 21 (quoting United States v. Starks, 515 F.2d 112,
116-17 (3d Cir. 1975)). Likewise, by charging Rodriguez in the disjunctive, it
is unclear whether a requisite number of grand jurors agreed to indict under
subsection (c) alone. 9 See R. 3:6-9(a) (requiring concurrence of twelve or
9
We acknowledge that the Supreme Court has also "allowed counts [in an
indictment] to embrace more than one issue when the statute in question
addresses several things disjunctively." State v. McDougald, 120 N.J. 523,
563 (1990) (citing State v. Pirone, 78 N.J. Super. 158, 160-61 (App. Div.
1963)). But, the charges in those cases have involved the same conduct. In
Pirone, we upheld an indictment that joined in a single count "wilful and
malicious burning, and setting fire with intent to burn" because "both crimes
relate[d] to the same fire." 78 N.J. Super. at 160. Likewise, in McDougald,
the defendant was charged with hindering apprehension by violating N.J.S.A.
2C:29-3(b)(2) or (3), by the same act of killing two witnesses. Here, the two
forms of unlicensed practice of medicine involve different acts. Furthermore,
because we cannot determine if the grand jury agreed to indict under N.J.S.A.
A-4361-19
34
more grand jurors). Therefore, we affirm the dismissal of count three of the
indictment in its entirety.
The failure to clearly instruct the grand jury as to the appropriate scope
of a medical assistant's practice also tainted the counts charging theft by
deception, health care claims fraud, and conspiracy to commit health care
claims fraud. The crux of the deception and the fraud was that Dr. Ferraro
sought reimbursement for procedures and activities that Rodriguez performed,
by falsely conveying Dr. Ferraro performed them instead. Menendez stated
that only licensed health care professionals had identification numbers to bill
insurers for services. Thus, any procedure or activities a medical assistant
performed would have to be billed under the supervising physician's number.
It was essential for the grand jury to know what procedures or activities a
medical assistant could lawfully undertake in order to fairly decide whether
Rodriguez, Dr. Ferraro, or Galvan intended to deceive or defraud Horizon.
C.
The trial court appropriately identified additional grounds for dismissing
the theft-by-deception, health-care-claims-fraud, and conspiracy counts. The
prosecutor's statement that the alleged health-care-claims-fraud "involve[d]
more than five claims . . . 'cause there's thousands of claims" expressed the
2C:21-20(a) or (c), we would usurp the grand jury's role if we struck one of the
crimes and reinstated the other. Cf. Pirone, 78 N.J. Super. at 160.
A-4361-19
35
prosecutor's view on the quantity and quality of evidence, and conveyed to the
grand jury that the State had more evidence of criminality than it chose to
present. That, the prosecutor may not do. See State v. Eckel, 429 N.J. Super.
580, 591 (Law. Div. 2013) (dismissing indictment because prosecutor
commented to the grand jury on the "quantum and quality of the evidence");
see also Sara Sun Beale et al., Grand Jury Law & Practice, § 9:3 (2d ed. 2020)
(stating the problem presented by a "prosecutor's statement of his or her
personal opinion" "is magnified if the prosecutor's comments suggest that his
opinion is based on additional evidence not presented to the grand jury").
That most directly prejudiced Rodriguez, because an element of the
health-care-claims-fraud count was proof of five or more claims totaling at
least a thousand dollars. See N.J.S.A. 2C:21-4.3(c). But, as the court
observed, the prejudice was more far-reaching, because the prosecutor
effectively told the grand jury that it did not have to rely on the handful of
patients that Menendez or his team interviewed, or even the hundred files that
he reviewed, because there were "thousands" of false claims that were never
presented to the grand jury. Essentially, the judge concluded that the
prosecutor's remark "'substantially influenced the grand jury's decision to
indict'" or created "'grave doubt' that the determination ultimately reached was
arrived at fairly and impartially." State v. Sivo, 341 N.J. Super. 302, 318
A-4361-19
36
(Law. Div. 2000) (quoting Bank of Nova Scotia v. United States, 487
U.S. 250, 256 (1988)). We agree.
We also defer to the trial court's critique of Menendez's method of
calculating the amount allegedly obtained fraudulently or deceptively.
Menendez's calculation was the only evidence satisfying the greater-than-
$75,000-element of second-degree theft that Rodriguez and Dr. Ferraro
allegedly committed. See N.J.S.A. 2C:20-2(b)(1)(a). Menendez or his team
spoke to ten patients who visited Dr. Ferraro's medical clinic. Three patients
indicated they saw only Rodriguez. Based on statements taken from those
individuals, Menendez concluded the handwriting in the files for those patients
belonged to Rodriguez. Despite the State's failure to qualify Menendez to
offer a handwriting opinion, Menendez relied on his handwriting analysi s and
records review to conclude Rodriguez treated patients in forty-five of the one
hundred randomly selected files; and then, without any additional justification,
Menendez extrapolated that forty-five percent of all Horizon claims involved
services Rodriguez performed. 10
10
This conclusion is further called into question by the disclosure that
Rodriguez took about four months of maternity leave when the crimes
allegedly occurred. Further, the statements of patients Menendez interviewed
indicate that other people, besides Rodriguez and Dr. Ferraro, saw patients.
Who they were and what roles they played in the office is unclear.
A-4361-19
37
Although an indictment may be based on hearsay, see State v. Thrunk,
157 N.J. Super. 265, 278 (App. Div. 1978), or on evidence that would not be
competent at trial, see State v. Holsten, 223 N.J. Super. 578, 585 (App. Div.
1988), the trial court appropriately exercised its discretion in determining that
Menendez's opinion lacked sufficient reliability to support the indictment. In
State v. Vasky, 218 N.J. Super. 487 (App. Div. 1987), as here, the State had to
present evidence of value as an element of theft. We affirmed dismissal of the
indictment because "[t]here was no evidence" the persons opining about the
stolen items' value "had personal knowledge based on observation of [the
items] or had the experience necessary to value them." Id. at 491-92. We
held, "Statements of fact or opinion that are not even remotely supported by
personal knowledge or experience are not evidence and may not be the basis
for an indictment." Id. at 492.
To meet the $75,000 threshold, the State needed to provide more than a
speculative extrapolation based on three patients and an unqualified
handwriting analysis. The State was obliged to identify specific patients
Rodriguez treated, the fraudulent claims submitted, and the monies paid out as
a result of the alleged deception. The State did none of that.
The trial court also appropriately found that the indictment lacked
essential detail. The prosecutor, conceding that "we didn't indict per patient
A-4361-19
38
. . . [and] per date," explained, "[t]he patients don't know specifically at or
about what time they were [treated by the office]." Nor did the State present to
the grand jury — or disclose to defendants in discovery — evidence of the
specific insurance claims for procedures or services that Rodriguez rather than
Dr. Ferraro allegedly performed that encroached on the practice of medicine,
the patient involved, and the amount received.
As we have noted, an indictment's "primary purpose" is to enable a
defendant to prepare a defense by adequately describing the offense charged.
Rios, 17 N.J. at 603. It is fundamental that "an indictment . . . must not only
contain all the elements of the offense charged, but must also provide the
accused with a sufficient description of the acts [s]he is alleged to have
committed to enable h[er] to defend h[er]self adequately." 5 Wayne R. LaFave
et al., Criminal Procedure, § 19.3(c) (4th ed. 2020) (quoting United States v.
Rizzo, 373 F. Supp. 204, 205-06 (S.D.N.Y. 1973), aff'd sub nom. United States
v. Marion, 493 F.2d 1399 (2d Cir. 1974)). "[A]n 'indictment must allege all
the essential facts of the crime.'" State v. Dorn, 233 N.J. 81, 93 (2018)
(quoting State v. LeFurge, 101 N.J. 404, 418 (1986)); see also United States v.
Menendez, 137 F. Supp. 3d 688, 706 (D.N.J. 2015) (noting that "[a] valid
indictment may not simply allege the 'essential elements of the offense;' it
must also allege specific facts that satisfy those elements" (quoting United
A-4361-19
39
States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007)), aff'd, 831 F.3d 155 (3d
Cir. 2016)).
As a general rule, "[t]he charging instrument must include a satisfactory
response to the questions of 'who . . ., what, where, and how.'" 5 LaFave §
19.3(c) (quoting People v. Zupancic, 557 P.2d 1195, 1197 (Col. 1976)).
Further, it has traditionally been the rule that "time and place have been
viewed as not requiring great specificity," as they typically are not elements of
the crime; "[t]hus, the time allegation can refer to the event as having occurred
'on or about' a certain date and, within reasonable limits, proof of a date before
or after that specified will be sufficient, provided it is within the statute of
limitations." Ibid.
What constitutes fair notice depends on the circumstances. State in the
Interest of K.A.W., 104 N.J. 112, 121-22 (1986). Among the factors the Court
has deemed relevant to determining whether the dates in an indictment provide
fair notice of the crimes is "the extent and thoroughness of the prosecutor's
investigative efforts to narrow the time frame of the alleged offense." Id. at
122. Here, the prosecutor could have reviewed treatment files (as Horizon did)
and identified instances in which Rodriguez allegedly performed services that
were mislabeled as performed by Dr. Ferraro. Thus, even if patients could not,
unassisted, recall visits in which Rodriguez allegedly treated them as if she
A-4361-19
40
were a licensed physician, the patients' treatment records presumably existed,
and could have been used to refresh the patients' memories to identify the dates
of the alleged crimes. Moreover, the State's failure to obtain patient records
from the office does not excuse its inability, on the second presentment, to
establish specific dates of criminality.
Under the circumstances, the State's allegation that the crimes occurred
"on or about January 2012 until on or about May 2017" failed to apprise
defendants of the crimes alleged or to enable them to mount a defense. Absent
such detail, Rodriguez, Galvan, and Dr. Ferraro were severely handicapped in
their ability to defend. The trial court did not abuse its discretion in
dismissing the indictment on the grounds it omitted sufficient detail to enable
defendants to defend.
All these flaws in the indictment and the grand jury process also
undermine the viability of the conspiracy count. In particular, the record lacks
evidence that Galvan in particular entered into a conspiracy to commit health
care claims fraud. "[T]he agreement to commit a specific crime is at the heart
of a conspiracy charge. Such an agreement is central to the purposes
underlying the criminalization of the inchoate offense of conspiracy." State v.
Samuels, 189 N.J. 236, 245 (2007).
In sum, we affirm the trial court's order dismissing the indictment.
A-4361-19
41
III.
On Galvan's and Dr. Ferraro's cross-appeals, they contend the trial court
should have dismissed the second indictment with prejudice because the
indictment was motivated by prosecutorial vindictiveness.
Our Court has recognized that "[p]rosecutorial vindictiveness in the
indictment process may . . . run afoul of due process and warrant court
intervention." Shaw, 241 N.J. at 240. The due process violation consists of
retaliation against a defendant who successfully exercised his or her appellate
rights. State v. Gomez, 341 N.J. Super. 560, 571 (App. Div. 2001).
In this case, after the trial court dismissed the first indictment, the
prosecutor certainly "upped the ante" by obtaining the grand jury's approval of
second-degree charges. See Blackledge v. Perry, 417 U.S. 21, 27-28 (1974)
(establishing presumption of vindictiveness when prosecutor discouraged
misdemeanor appeal "by 'upping the ante' through a felony indictment
whenever a convicted misdemeanant pursues his statutory appellate remedy").
However, "no presumption of vindictiveness arises in the pretrial stage."
Gomez, 341 N.J. Super. at 573. That is because "[t]rial preparation or
continuing investigation may well lead the prosecutor to the reasonable
conclusion that additional or substituted charges are appropriate." Id. at 575.
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Therefore, a defendant claiming prosecutorial vindictiveness must
present "affirmative proof of actual vindictiveness." Id. at 578. The trial court
found no such proof here, and we discern insufficient grounds to disturb that
finding. Id. at 577 (stating that we must determine "if sufficient credible
evidence in the record as a whole supports" the trial court's prosecutorial
vindictiveness finding, although we more broadly review implications the
court draws from its findings).
Nor is dismissal with prejudice compelled by Shaw. To protect the
grand jury's screening function, the Supreme Court in Shaw established
limitations on grand jury resubmissions. 241 N.J. at 243-44. But, the Court's
rule applies when a grand jury refuses to indict, and the State persists in
seeking an indictment. Ibid. In this case, both grand juries agreed to indict.
Affirmed.
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