People v. Baghai-Kermani, BAGHAI-KERMAN

• Decision Date: 07 December 1993
• Docket Number: BAGHAI-KERMAN,D
• Parties: The PEOPLE of the State of New York, Respondent, v. Abdolhoseinefendant-Appellant. The PEOPLE of the State of New York, Appellant, v. Abdolhoseinefendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 19

605 N.Y.S.2d 19

199 A.D.2d 36

The PEOPLE of the State of New York, Respondent, v. Abdolhosein BAGHAI-KERMANI, Defendant-Appellant.

The PEOPLE of the State of New York, Appellant, v. Abdolhosein BAGHAI-KERMANI, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Dec. 7, 1993.

Before CARRO, J.P., and WALLACH, KUPFERMAN, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Stephen G. Crane, J.), entered on or about February 26, 1993, which granted defendant's CPL 440.10 to set aside his conviction, after a bench trial, of ten counts of criminal sale of a prescription for a controlled substance (Penal Law § 220.65), unanimously modified, on the law, to reinstate the defendant's conviction on counts one, two, and four through nine, and otherwise affirmed. Order of the same Court and Justice, entered on or about March 17, 1993, which denied defendant's CPL 440.10 motion to set aside his conviction on jurisdictional grounds, unanimously affirmed. Defendant is directed to surrender to commence service of his sentence on those counts as to which his conviction is reinstated, and the matter is remitted to the Supreme Court for retrial on counts ten and eleven of the indictment.

The defendant was convicted after a bench trial, at which he represented himself, of ten counts of criminal sale of a prescription for a controlled substance (Penal Law § 220.65), and he was sentenced to concurrent indeterminate terms of imprisonment not to exceed five years on each count and fines totalling $100,000. Several months after sentencing defendant brought two motions pursuant to CPL 440.10 to set aside the judgment on jurisdictional grounds, and on grounds that the People improperly withheld from the defense material that should have been turned over pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. By orders dated February 26 and March 17, 1993 respectively, the trial court granted the defendant's motion to vacate his conviction for failure to turn over Rosario material (from which the People appeal), and denied defendant's motion to vacate his conviction on jurisdictional grounds (from which the defendant appeals).

As pertinent to the jurisdictional issue, Executive Law § 63(3) provides that the Attorney-General shall:

"[u]pon request of the governor * * * or the head of any * * * department, authority, division or agency of the state, investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury."

On April 27, 1978 the Commissioner of the New York State Department of Health wrote to the Attorney-General:

Pursuant to Section 63(3) of the Executive Law, I hereby request that your office investigate the alleged commission of any indictable offense or offenses in violation of the Public Health Law or any other law in relation to any matters connected with the provision of medical assistance for needy persons under the state plan for medical assistance referred to in Section 363-a of the Social Services Law, and to prosecute the person or persons believed to have committed the same or any crime or offense arising out of your investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury.

On that same date the Commissioner of the Department of Social Services wrote an almost identical letter to the Attorney-General with respect to violations of the Social Services Law. The Attorney-General delegated this authority to the Deputy Attorney-General for Medicaid Fraud Control.

Defendant argued below and on appeal that the language of the letters reveals that the Commissioners of Health and Social Services intended to limit their Executive Law § 63(3) requests to the investigation and prosecution of Medicaid providers and their accomplices, co-conspirators or agents, and points out that in early 1988 he was denied re-enrollment as a Medicaid provider. However, the evidence at trial was that defendant had an ongoing practice of selling prescriptions for controlled substances to persons whom he believed to be registered as Medicaid recipients (each "patient" was required to produce a Medicaid card), and while defendant was precluded from billing Medicaid for his own services during the time period covered by the indictment (November 1989 through April 1991), the system continued to pay out millions of dollars for the drugs he prescribed to Medicaid recipients, while he routinely charged approximately $80 for each prescription issued by him without the exercise of any medical judgment.

We note in this regard that the Department of Social Services is not solely concerned with payments made directly to miscreant providers, but may also seek repayment for improperly ordered services or supplies "from the person ordering or prescribing them even though payment was made to another person." (18 NYCRR § 518.3[b]. Clearly, the crimes for which the defendant was indicted were "in relation to any matters connected with the provision of [Medicaid]" as set forth in the April 27, 1978 letters, as well as constituting violations of the Public Health Law (see, People v. Lipton, 54 N.Y.2d 340, 347-348,...