People v. Mayer

2003 NY Slip Op 18263 [1 AD3d 461]

The New York Law Journal
August 20, 2002

County Court

Judge De Rosa

Defendant is charged in this indictment with the crimes of Unauthorized Practice of Medicine (7 counts), Class E Felonies, in violation of §6512(1) of the Education Law; Insurance Fraud in the Fifth Degree (6 counts), Class A Misdemeanors, in violation of §176.10 of the Penal Law of the State of New York and Petit Larceny (6 counts), Class A Misdemeanors, in violation of §155.25 of the Penal Law of the State of New York.

Defendant has moved for certain pre-trial relief which the Court decides, having considered 1) the defendant’s notice of motion and affirmation, submitted by Benjamin Ostrer, Esq., Benjamin Ostrer & Associates, P.C., 2) the People’s affirmation in response, submitted by Robert Ostrov, Esq., Assistant District Attorney, Orange County District Attorney’s Office, 3) the defendant’s reply affirmation submitted by Benjamin Ostrer, Esq, and 4) the transcript of Grand Jury proceedings.

Motion to Inspect Grand Jury Minutes:

Defendant’s motion is granted to the extent that the Court has reviewed the minutes of the Grand Jury in camera.

Upon review of the grand jury minutes, it is the finding of the Court that the jury was not properly instructed with respect to the applicable law and with respect to certain of the counts, the evidence is legally insufficient to establish a prima facie case. Defendant Paul Mayer is charged with numerous counts of Unauthorized Practice of Medicine, in violation of §6512(1) of the Education Law along with related counts of insurance fraud and petit larceny. Defendant is alleged to have practiced medicine on November 28, 29, 30, December 1, 2000, April 12,2001 and June 9,2001, while his license to do so was suspended or revoked. The grand jury heard the following evidence.

On September 13, 2000, the New York State Department of Health, State Board for Professional Medical Conduct issued an order revoking defendant’s license to practice medicine.

On September 22, 2000, the State Board’s order of revocation was temporarily stayed by the Supreme Court, Appellate Division, Third Dept.

On November 9, 2000, the continuation of the temporary stay of the order of revocation was denied by the Supreme Court, Appellate Division, Third Dept., thereby reinstating the revocation of defendant’s license to practice medicine.

On November 14,2000, Kristin R. White, Assistant Attorney General, New York State Attorney General’s Office, sent a letter by regular mail to defendant’s attorney, Charles E. Luceno, Esq., Farber & Luceno, L.L.P. enclosing a copy of the November 9,2000 decision. The letter advised defendant’s attorney that the stay of the order revoking the defendant’s license would be vacated as of the close of business on November 24, 2000.

On August 7, 2001, the Supreme Court, Appellate Division, Third Dept. vacated its November 9, 2000 decision and again stayed the order of revocation.

On November 29, 2001, the Supreme Court Appellate Division, Third Dept., annulled the determination of the State Board for Professional Medical Conduct revoking defendant’s license. This order, although marked as a Grand Jury Exhibit, was not presented to the grand jury.

With respect to Counts 2 through 6 charging defendant with the crime of Unauthorized Practice of Medicine, in violation of §6512(I) of the Education Law, during the time period of November 28,2000 through December 1, 2000, the evidence presented to the grand jury was insufficient to establish that defendant had any notice (actual or constructive) of the revocation of his license or that he could no longer practice medicine after November 24, 2000.

Education Law §651 O(4)(c) requires service of a determination and order of the state Board of Professional Conduct upon the licensee personally or by certified mail to the licensee’s last known address. Such service is effective as of the date of personal service or five days after mailing by certified mail.

PHL §230(10)(h) requires that a determination of the committee for professional misconduct be served personally upon the licensee or by certified mail at licensee’s last known address. Service is effective on the date of personal service, receipt of the mailing or seven (7) days after the certified mailing, whichever is earlier.

While Education Law §6512(I) setting forth Unauthorized Practice of Medicine does not require actual knowledge on the part of the defendant of a revocation of his license, there must be some evidence presented to the grand jury sufficient to establish notice to the defendant.

In this case, the grand jury heard evidence that on November 14, 2000, a letter was sent, by regular mail, to defendant’s attorney advising that defendant had to cease practicing medicine as of the close of business on November 24, 2000. This evidence is insufficient to establish that defendant had any notice of the effective date of the revocation. People v. Kleiner, 174 Misc 2nd 261 (Sup. Ct. Richmond Cty. 1997); People v. Twine, 202 A.D. 2d 613 (2nd Dept. 1994).

Furthermore, at the conclusion of the case, the grand jury was not advised of any statutory authority upon which the jurors could conclude that defendant had any notice of the revocation.

Absent prima facie evidence of compliance with statutory notice requirements and instructions to the jury as to what those requirements are, the grand jury could not conclude that defendant knowingly practiced medicine without authority. At a minimum, in order to sustain a charge for Unauthorized Practice of Medicine, a factual finding must be made that defendant knew he was practicing medicine unlawfully.

Accordingly, Counts 2 through 6 will be dismissed.

The Court further notes that the evidence presented to the grand jury to support Count 2, alleging Unauthorized Practice of Medicine, upon patient, D.B., on November 28,2000, was insufficient to establish that defendant practiced medicine.

Education Law §6521 defines the practice of medicine as diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.

The only evidence presented in Count 2 was a health insurance claim form admitted as a business record, listing defendant Mayer as providing a service to the patient. Beyond this claim form, there is no evidence whatsoever as to whether defendant Mayer provided a service or what the service was. on this evidence, the grand jury could not possibly have concluded that defendant practiced medicine on November 28, 2000.

The evidence is likewise legally insufficient as to Count 3, alleging the unauthorized practice of medicine upon patient, A.H., on November 30, 2000. The grand jury heard testimony of the patient to the effect that Dr. Mayer performed a “medical procedure”, gave the patient no medication and gave her no advice other than to say “take care of yourself’ without more, the grand jury could not have concluded that defendant practiced medicine upon this patient.

The evidence is likewise legally insufficient as to Count 5 alleging the Unauthorized Practice of Medicine upon patient, P.B., on November 30, 2000. The grand jury heard testimony from the patient that on November 30, 2000, she met with defendant and spoke about medication- The defendant did not perform an examination and the patient was not sure whether he prescribed any medications or gave her any recommendations. This evidence is legally insufficient to establish that defendant practiced medicine upon this patient.

With respect to Counts 1 and 7 alleging Unauthorized Practice of Medicine by defendant on April 12, 2001 and June 9, 2001, respectively, the Court finds as follows. At the time the case was presented to the grand jury on February 6,2002 and February 7,2002, the determination of the State Board revoking defendant’s license was annulled. As a result, the crimes with which defendant was charged were, as a matter of law, legally impossible. The plain meaning of annulment is to reduce to nothing. To annul a judgment… is to deprive it of all force and operation, retroactively and prospectively. Black’s Law Dictionary, Fourth Edition, Page 117. While legal impossibility is not a defense to attempt to commit a crime (Penal Law §110.10), and any attempt to commit Unauthorized Practice of Medicine would constitute the crime {People v. Kim, 186, Misc 2nd 477; People v. Lupinos, 176 Misc 2nd 852), at a minimum, the grand jury should have been advised of the annulment. Once so advised, it was incumbent upon the prosecutor to charge the jury with the definition of attempt so they could determine whether defendant possessed the requisite state of mind and whether, under these set of facts, defendant’s actions in administering two injections to the patient, N.L.B., on April 12, 2001, rose to the level of diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition sufficient to constitute the practice of medicine. Failure to do so requires the dismissal of count 1.

As to count 7 alleging that defendant practiced medicine on patient, K.S., on-June 9, 2001, the evidence presented to the grand jury was legally insufficient to establish that defendant practiced medicine. As in Count 2, the only evidence presented to the grand jury was a health insurance claim form listing the patient’s name and defendant Mayer as billing provider, servicing physician/supplier. The patient did not testify and there is no evidence from which the grand jury could conclude that defendant practiced medicine.

Therefore, based on the foregoing, counts 1 and 7 must be dismissed. Counts 8 through 19 charging insurance fraud and petit larceny are premised upon Unauthorized Practice of Medicine as alleged in Counts 1 through 7. Since those counts are being dismissed, counts 8 through 19 must also be dismissed.

Accordingly, based upon the aforesaid, and in accordance with CPL §210.20 (I) (b) and 210.35, it is hereby, ORDERED, that Indictment No. 2002-177 against defendant Paul S. Mayer and Hudson Valley Obstetrics and Gynecology, P.C. is dismissed in its entirety.

The above constitutes the Decision and order of the Court. Date Received: August 19, 2002