Diamond v. Sobol

• Decision Date: 15 December 1988
• Citation: 535 N.Y.S.2d 768,145 A.D.2d 786
• Parties: In the Matter of Richard N. DIAMOND, Appellant, v. Thomas SOBOL, as Commissioner of Education of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 768

535 N.Y.S.2d 768

145 A.D.2d 786

In the Matter of Richard N. DIAMOND, Appellant, v. Thomas SOBOL, as Commissioner of Education of the State of

New York, Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 15, 1988.

Robert S. Asher, New York City, for appellant.

Robert Abrams, Atty. Gen. (Raymond J. Foley, of counsel), Dept. of Law, Litigation Bureau, New York City, for respondent.

Before MAHONEY, P.J., and KANE, YESAWICH, HARVEY and MERCURE, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a[4] ) to review a determination of respondent which revoked petitioner's license to practice medicine in New York.

Following an affirmance by the United States Court of Appeals for the Second Circuit of petitioner's conviction of 15 counts of mail fraud and 24 counts of submitting false Medicare claims, the State Board of Professional Medical Conduct charged petitioner with violating Education Law § 6509(5)(a)(ii) and referred the matter to a Regents Review Committee (hereinafter RRC) under the expedited procedure of Public Health Law § 230(10)(m)(iv). In advance of that hearing, at which petitioner testified, petitioner submitted documentary evidence and memoranda of law in mitigation of the sanction to be imposed, and the Office of Professional Medical Conduct (hereinafter OPMC) submitted, inter alia, the judgment of conviction, an indictment, the Federal government's sentenci memorandum, sentencing minutes, a probation report, a letter from petitioner's probation officer, the Circuit Court's decision and a memorandum of law. The RRC by a 2-to-1 vote recommended revoking petitioner's license to practice as a physician, which recommendation the Board of Regents adopted and respondent acted upon. Petitioner commenced this proceeding challenging the Board's determination and respondent's order entered thereon. Petitioner argues that the RRC inappropriately considered evidence of misconduct other than the 39 criminal counts on which he was convicted, thereby improperly expanding the scope of the expedited hearing; that the OPMC unfairly used hearsay and innuendo in the direct referral proceeding and that the penalty imposed is disproportionately harsh given that this is his first conviction and the extent of the fraud was minor.

Public Health Law § 230(10)(m)(iv) limits the expedited procedure, in cases of criminal or administrative violations, to "evidence and testimony relating to the nature and severity of the penalty to be imposed upon the licensee". However, by analogy to criminal sentencing, aggravating and mitigating circumstances are certainly relevant in determining the sanction to be imposed (see, People v. Moseley, 20 N.Y.2d 64, 68, 281 N.Y.S.2d 762, 228 N.E.2d 765), as are considerations of societal protection, rehabilitation and deterrence (see, People v. Whiting, 89 A.D.2d 694, 695, 453 N.Y.S.2d 790). Here, the RRC considered evidence that the 39 counts upon which petitioner was convicted were merely a sampling of his fraudulent activity. Reference by OPMC's counsel to the 595 additional occasions of double-billing, 362 of which were rejected by Blue Cross/Blue Shield, was quite relevant to dispute petitioner's suggestion at the hearing that while he assumed general...