People v. Kleiner

• Decision Date: 16 September 1997
• Citation: 664 N.Y.S.2d 704,174 Misc.2d 261
• Parties: , 1997 N.Y. Slip Op. 97,559 The PEOPLE of the State of New York, Plaintiff, v. Kenneth KLEINER, Defendant.
• Court: New York Supreme Court

Page 704

664 N.Y.S.2d 704

174 Misc.2d 261, 1997 N.Y. Slip Op. 97,559

The PEOPLE of the State of New York, Plaintiff, v. Kenneth KLEINER, Defendant.

Supreme Court, Richmond County.

Sept. 16, 1997.

Slotnick, Shapiro & Crocker, L.L.P., New York City (Rafael Abramovitz, of counsel), for defendant.

Dennis C. Vacco, Attorney-General (Ronda Lustman, of counsel), for plaintiff.

JOSEPH J. MALTESE, Justice.

This decision discusses the elements of the crime of Unauthorized Practice of Medicine under Education Law section 6512(1) and whether the process of revoking a physician's license is constitutional.

The defendant, a former licensed physician in the state of New York, was charged with thirteen counts (reduced to seven counts on motion of the People during the course of the trial) of practicing medicine without a license in violation of Education Law section 6512(1) which states Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts, or who practices any profession as an exempt person during the time when his professional license is suspended, revoked or annulled, or who aids or abets an unlicensed person to practice a profession, or who fraudulently sells, files, furnishes, obtains, or who attempts fraudulently to sell, file, furnish or obtain any diploma, license, record or permit purporting to authorize the practice of a profession, shall be guilty of a class E felony.

A jury found the defendant guilty of all of the remaining seven counts of unauthorized practice of medicine without a license. The defendant now moves to set aside that verdict.

The defendant claims that the notice requirements of the civil hearing to revoke his medical license and the notice requirements to advise him that his license was revoked as a result of the civil hearing are inadequate. He asserts that neither notice mandates "actual knowledge" of the civil hearing or the revocation of his license and that each violates "due process" and consequently is unconstitutional. Moreover, the defendant argues that the state cannot criminally prosecute him for violating the determination of the civil proceeding which revoked his medical license, because the standard of proof required in the civil proceeding was a mere "preponderance of the evidence" and the instant criminal case requires proof "beyond a reasonable doubt."

The defendant argues that "actual knowledge" should be an element of the offense. He further argues that if the defendant did not have "actual knowledge" of the civil hearing or the subsequent revocation of his medical license, then a jury cannot find the defendant guilty "beyond a reasonable doubt" in the criminal prosecution of Education Law § 6512(1).

The Assistant Attorney General argues that the statute does not require that the People prove "actual knowledge" of the revocation of the physician's license, but only that a notice be sent to the defendant which would give him "constructive knowledge" of the revocation. Moreover the People argue that this court should not create such an element of the offense. Lastly the People assert that the defendant cannot challenge the constitutionality of the underlying revocation of the defendant's license in this criminal prosecution.

Constitutionality

The process of revoking or suspending a physician's license is constitutional in that it provides for "due process" through the civil hearing process of giving notice to the defendant, with an opportunity to be heard, to present evidence on his own and to confront the evidence against him. Prosecuting a person who has notice of the revocation of his medical license after such an opportunity to participate in the hearing is a constitutionally valid exercise of the state's discretion in safeguarding the public's health and welfare (People v. Twine, 202 A.D.2d 613, 610 N.Y.S.2d 809 [App.Div.2d Dept.1994]; see also, Bell v. Board of Regents, 295 N.Y. 101, 65 N.E.2d 184 [1946]; Matter of Allen v. Board of Regents, State of New York, 140 A.D.2d 824, 528 N.Y.S.2d 211 [App.Div.3d Dept.1988].)

The United States Supreme Court has upheld the constitutionality of regulating the practice of medicine as being a reasonable exercise of the state's police power to regulate (see, Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 [1889]; see also People v. Cole, 219 N.Y. 98, 113 N.E. 790 [1916] ). Moreover, there is a strong presumption that a statute duly enacted by the legislature is constitutional. The Court of Appeals has held that to declare a law unconstitutional, its invalidity must be demonstrated beyond a reasonable doubt (Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539 [1965] ).

Procedural Due Process

A license to practice medicine is property, entitled to Constitutional protection, and therefore may not be revoked without due process (Damino v. O'Neill, 702 F.Supp 949 [E.D.N.Y.1987] ). Due process requires that the government act reasonably in selecting and employing a means of notice likely to inform the individual of the proceeding (Weigner v. City of New York, 852 F.2d 646, 649-50 [2d Cir.1988] ).

While the New York State Department of Education licenses and registers physicians (Education Law §§ 6501, 6520 et seq.), the State Board for Professional Medical Conduct ("State Board"), within the New York State Department of Health, governs matters of professional misconduct (Public Health Law § 230[1] ). From among the members of the State Board, Committees on Professional Conduct are appointed to conduct disciplinary proceedings on licensed physicians who are charged with misconduct (Public Health Law §§ 230[5] & [6] ).

The New York State Constitution decrees that the "protection and promotion of the health of the inhabitants of the state are matters of public concern" (N.Y.S. Con., Art. 17, § 3). Reports of abuse, neglect, or mistreatment are governed by section 2803-d of the Public Health Law. However, "misconduct" is determined by sections 6530 and 6531 of the Education Law. The licensing and professional requirements for the medical profession are contained in Article 131 of the Education Law ( §§ 6520 through 6529).

As a matter of procedural due process, a licensed physician is afforded notice of charges against him by Public Health Law § 230.10[b]. The notice of the civil hearing from the State Board for Professional Medical Conduct of the Department of Health advises the licensed physician of the date, time and place of the hearing, the physician's right to file written answers to the charges, the right to appear in person and be represented by counsel, the right to produce witnesses and evidence in his behalf, the right to cross-examine witnesses and examine evidence produced against him and the right to subpoena witnesses and evidence on his own behalf. Service of the charges and notice of the hearing must be served "personally by the board at least twenty days before the hearing." (Public Health Law § 230[10][d].) If personal service cannot be made "after due diligence," notice is served by registered or certified mail at least fifteen days before the hearing (Public Health Law § 230[10][d] ).

The hearings are stenographically recorded and are conducted in accordance with the state administrative procedure act. The committee conducting the hearing is not bound by the rules of evidence, but its conclusions must be based upon a preponderance of the evidence (Public Health Law §§ 230[10][c], [e] & [f]).

After the Board of Health makes a determination that it is suspending or revoking a physician's license it must then advise the physician of such change in his or her professional status (Public Health Law § 230[10][h]). In a prosecution for unauthorized practice of medicine, the People must demonstrate that the licensee was notified that his license to practice medicine was revoked. Only after demonstrating that the defendant was notified of such revocation of his or her license can the State assert that the defendant knowingly or intentionally practiced medicine without authorization. Following the decision of the Board, either party may appeal to the Administrative Review Board (Public Health Law §§ 230[10][i]; 230-c[4] ). An order of the Administrative Review Board can be reviewed by the Appellate Division, Third Department, in a CPLR article 78 proceeding (Public Health Law § 230-c[5] ). ¹

The Department of Education is statutorily authorized to share information concerning state disciplinary determinations with other public agencies responsible for professional regulation (Education Law § 6510[8] ). Additionally, state disciplinary and licensure boards are required to report disciplinary actions against physicians to the federally established National Practitioner Data Bank (see 42 U.S.C.A. §§ 11101-11152).

The Notice Requirement

Clearly, the text of Education Law section 6512(1) does not expressly require "actual knowledge" on the part of the defendant to be convicted of this statute. Education Law section 6510(4)(c) only provides that an order revoking a license "shall be served upon the licensee personally or by certified mail to the licensee's last know address and such service shall be effective as of the date of the personal service or five days after mailing by certified mail." (Emphasis added.)

Public Health Law section 230(10)(h) provides:

The findings, conclusions, determination and the reasons for the determination of the committee shall be served upon the licensee and the department within sixty days of the last day of hearing. Service shall be either by certified mail upon the licensee at the licensee's last known address and such service shall be effective upon receipt or seven days after mailing by certified mail whichever is earlier or by personal service and such service shall be effective...