STATE OF NEW JERSEY VS. YVONNE JEANNOTTE-RODRIGUEZ STATE OF NEW JERSEY VS. MARTA I. GALVAN STATE OF NEW JERSEY VS. LISA FERRARO (19-06-0446, PASSAIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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.

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 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

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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
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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
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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
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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
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 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
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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
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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."

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 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
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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
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 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
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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.

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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).

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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
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(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
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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.
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(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.

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 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

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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).
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 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

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 • 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).
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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
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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.
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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.
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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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