People v. Keschner

• Decision Date: 30 June 2015
• Docket Number: Nos. 15, 16,s. 15, 16
• Citation: 16 N.Y.S.3d 187,2015 N.Y. Slip Op. 05596,25 N.Y.3d 704,37 N.E.3d 690
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew KESCHNER, Appellant. The People of the State of New York, Respondent, v. Aron Goldman, Appellant.
• Court: New York Court of Appeals Court of Appeals

25 N.Y.3d 704

37 N.E.3d 690

16 N.Y.S.3d 187

2015 N.Y. Slip Op. 05596

The PEOPLE of the State of New York, Respondent

v.Matthew KESCHNER, Appellant.

The People of the State of New York, Respondent

v.Aron Goldman, Appellant.

Nos. 15, 16

Court of Appeals of New York.

June 30, 2015.

Robert S. Dean, Center for Appellate Litigation, New York City (Susan H. Salomon of counsel), for appellant in the first above-entitled action.

Jenner & Block LLP, Washington, D.C. (Matthew S. Hellman, of the District of Columbia bar, admitted pro hac vice, of counsel), and Jenner & Block LLP, New York City (Peter B. Pope and Eddie A. Jauregui of counsel), for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for respondent in the first and second above-entitled actions.

OPINION OF THE COURT

FAHEY, J.

We hold that the prosecution in an enterprise corruption case may prove that a defendant was a member of a criminal enterprise, with a continuity beyond the scope of individual criminal incidents, without showing that the enterprise would have survived the removal of a key participant. In addition, we conclude that defendants' challenges to the trial court's instructions on accomplice liability are not preserved, and we reject their claims of ineffective assistance of counsel.

I.

Defendant Matthew Keschner was a licensed chiropractor. Defendant Aron Goldman was licensed to practice medicine. They began working in 2001 at a medical clinic in Manhattan started by Gregory Vinarsky. Vinarsky employed “runners” who listened to police scanners to learn where car accidents had occurred and then approached the accident victims and offered to pay them to go to the clinic. Vinarsky then referred the patients to certain lawyers, who paid kickbacks to him for the referrals. He established relationships with managers of facilities that carried out tests such as MRIs and X rays, who made payments to his clinic in exchange for referrals. He also arranged to receive kickbacks from companies from which durable medical equipment could be ordered. At the clinic, Vinarsky

ensured that personnel prescribed the maximum number of tests, treatments, and items of medical equipment that no-fault insurance would cover, regardless of a patient's need.

Goldman was listed as the owner of the clinic on incorporation papers. New York requires that the owner of an incorporated medical clinic be licensed to practice medicine, and Vinarsky was not licensed. Keschner incorporated his chiropractic practice under his own name. Goldman, an internist, was on a salary, while Vinarsky's arrangement with Keschner was profit-sharing in exchange for referrals. Vinarsky also had similar referral arrangements with an acupuncturist and a neurologist.

In 2002, Vinarsky shut this clinic down, and opened another, St. Nicholas Medical Clinic, near Columbia University Medical Center, running the same scheme with the same personnel. Vinarsky selected the location of the new clinic, chose its employees, ordered medical supplies, hired and managed the “runners,” and oversaw the paper work and billing submitted to the insurance companies. He also opened bank accounts and created management companies into which proceeds were placed. Goldman again became a salaried employee at the clinic, and was named as the owner on incorporation documents. He worked at the clinic three days a week. Vinarsky and Keschner again had a profit-sharing arrangement; Keschner kept 35% of the profits his chiropractic corporation generated, and gave the rest to Vinarsky. Keschner worked three days a week, and hired a second chiropractor to assist him. Vinarsky, meanwhile, hired two physicians to supplement Goldman.

Vinarsky created a preprinted initial evaluation form that the doctors at the clinic completed for each patient. The first entry in its “Treatment Plan” template, for example, was, “The patient advised to attend a supervised physical therapy program on a regular scheduled basis at least 3 times a week.” A list of durable medical equipment was similarly designed to maximize the amount that could be billed to insurance companies per patient. The Prognosis section was also preprinted; it stated for each patient, regardless of actual condition, that the prognosis was “[g]uarded,” that “the supporting tissues of the spine [would] become less effective,” and that “chronic joint dysfunction” would likely ensue. In accordance with such directives, Keschner told his patients to return for treatment three or four times a week, thus maximizing no-fault insurance reimbursement.

Vinarsky programmed a computer to complete NF–3 No–Fault Insurance Law Verification of Treatment forms so as to indicate that the patient had not suffered from a similar condition in the past and that the injury was the result of an automobile accident. The NF–3 forms listed Keschner as the chiropractor, regardless of who had provided “treatment,” and indicated that Goldman had provided biofeedback testing, range of motion tests, and physical therapy, even though these were in fact conducted by other staff, including one minimally trained billing employee.

II.

In November 2006, the police executed a search warrant at St. Nicholas Medical Clinic. Vinarsky kept the clinic open for about two weeks, but took no new patients. Around this time, Vinarsky opened a new clinic, sharing profits with Keschner again, in which Goldman had no part, but its existence was brief. Vinarsky closed both clinics, and there was no period of time in which either clinic continued to operate in his absence.

In February 2008, Keschner and Goldman were charged, in an 84–count indictment, with enterprise corruption, scheme to defraud in the first degree, and other crimes related to insurance fraud. Vinarsky was indicted as well. In 2009, after investigators executed search warrants at his apartment and at a law office, Vinarsky entered into a cooperation agreement. He pleaded guilty that December to enterprise corruption, grand larceny in the first degree, scheme to defraud in the first degree, and money laundering in the first degree.

The District Attorney's Office sent letters to the majority of the 54 former patients of St. Nicholas Medical Clinic whose names appeared in the indictment, informing them that the Office wished to speak with them about their visits to the clinic. Only three people indicated a willingness to speak with the People.

Keschner and Goldman proceeded to a joint jury trial, commencing in September 2010. A separate defense counsel represented each defendant. The prosecution theory was accomplice liability.

In his opening statement, the prosecutor explained that the jury would hear only from a “representative sample” of the patients treated at the clinic. He stated that the People had tried to contact “many” of “these patients ... but they didn't

want to talk to the District Attorney's Office, and you will understand why they didn't want to come and talk to the District Attorney's Office when it came time for us investigating this case.” The jury subsequently heard testimony from a paralegal in the District Attorney's Office about her futile efforts to interview the patients.

Vinarsky's testimony spelled out the fraudulent scheme in detail. He insisted that he had never told Goldman or Keschner how to treat patients or what to prescribe, or discussed kickbacks or billing or other aspects of operations at the clinic with them. Vinarsky explained, however, that such conversations were unnecessary because, among other things, the preprinted initial evaluation forms he created told the doctors what treatment was “supposed to be done.”

As promised, the People also produced several witnesses who had been patients, with legitimate or spurious injuries, at the clinic.

In addition to “chasing ambulances,” some of the runners employed by St. Nicholas Medical Clinic and their associates participated in staged car accidents. One man who took part in such an accident, Hernandez, consulted at the clinic with a Dr. Hilaire, who diagnosed the uninjured man with numerous contusions and other trauma to his back and advised him to attend physical therapy three times a week, to use a thermophore, a lumbosacral orthosis, an orthopedic bed board, and an eggcrate mattress, to have multiple X rays and MRIs, and to consult with a chiropractor, an acupuncturist, and an orthopedist.

Hernandez saw Keschner a number of times; the chiropractor would either “crack” his back or simply ask him how he was feeling and administer no treatment. NF–3 forms were submitted to GEICO on behalf of Hernandez for X rays, biofeedback training, chiropractic treatments, acupuncture sessions, and a cold water circulating unit. Eventually, Hernandez went to the authorities and admitted his involvement in the scheme.

A runner employed by St. Nicholas Medical Clinic named Perez had been “treated” at the clinic in connection with what the facility's medical records described as three separate motor vehicle accidents, in 2002, 2003 and 2004. In 2002, Goldman “evaluated” Perez and reported that he was suffering from post-concussion syndrome and a left shoulder injury; he wrote two prescriptions for durable medical equipment and advised

Perez to get various tests, X rays and MRIs. Perez also received chiropractic “treatment” from Keschner. In 2003, Goldman “evaluated” Perez following another “accident”; he made the same report, without mentioning the 2002 incident, and wrote a prescription for the same medical equipment. Goldman also recommended chiropractic treatment four times a week, as well as X rays and MRIs, and referred Perez to an orthopedist, a neurologist, and a psychiatrist. In 2004, Goldman conducted the initial evaluation of Perez following a third “accident”; again he used the same list of symptoms, but added a knee injury. The same tests and equipment were prescribed as in previous years, as well as an additional...