People v. Varas
| Decision Date | 01 April 1985 |
| Citation | 110 A.D.2d 646,487 N.Y.S.2d 577 |
| Parties | The PEOPLE, etc., Respondent, v. Jorge VARAS a/k/a George Varas and Elvira Andramuno, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Spiros A. Tsimbinos, Kew Gardens, for appellant Varas.
William E. Hellerstein, New York City (David P. Friedman, New York City, of counsel), for appellant Andramuno.
Edward J. Kuriansky, Deputy Atty. Gen., New York City (Bonnie H. Stein and Arthur G. Weinstein, New York City, of counsel), for respondent.
Before GIBBONS, J.P., and WEINSTEIN, BROWN and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeals by defendants from two judgments (one as to each of them) of the Supreme Court, Kings County, (1) one rendered February 16, 1984, as amended April 12, 1984, as to defendant Varas and (2) the other rendered March 22, 1984, as to defendant Andramuno, convicting them, after a nonjury trial, of unauthorized practice of a profession (five counts) (Education Law § 6512), offering a false instrument for filing in the first degree (five counts), willful violation of health laws (four counts) (Public Health Law § 12-b), petit larceny and conspiracy in the fifth degree and sentencing defendant Varas to an aggregate term of 90 days' imprisonment, to be served on weekends, concurrent with concurrent terms of probation of five years and three years and community service conditions, and a fine of $12,000, and sentencing defendant Andramuno to an aggregate term of 30 days' imprisonment, to be served on weekends, concurrent with concurrent terms of probation of five years and three years and community service conditions. These appeals bring up for review, inter alia, (1) the denial of those branches of defendant Varas' motion as sought to sever his trial from that of his codefendant and as sought to suppress certain medical charts seized pursuant to a search warrant, and (2) the denial, after a hearing, of that branch of defendant Varas' motion as sought suppression of certain statements.
Judgments modified, as a matter of discretion in the interest of justice, by deleting the provisions requiring defendants Varas and Andramuno to serve terms of imprisonment of 90 and 30 days, respectively. As so modified, judgments affirmed, and matters remitted to the Supreme Court, Kings County, for further proceedings pursuant to C.P.L. 460.50(5).
The record fairly reflects that the People established beyond a reasonable doubt that defendants conspired to and did practice and aid in the practice of medicine without a license, offered false instruments for filing, willfully violated the health laws and committed petit larceny.
There was sufficient evidence to support a finding that on at least five occasions, defendant Andramuno practiced medicine although she was not licensed to do so, in direct contravention of Education Law § 6512. Specifically, on October 17, November 20 and December 3, 1980 and on March 2, 1981, Andramuno held herself out as a physician to a special investigator on the Deputy Attorney-General's staff who was then posing as a Medicaid patient. The investigator, who recorded her sessions with Andramuno on a "NAGRA" tape recorder, testified that at various times Andramuno examined her, diagnosed her condition, and wrote prescriptions. The evidence also reveals that on December 3, 1980, Andramuno treated a patient by the name of Lily Calderon. Lily Calderon likewise testified that "the lady doctor" treated her in December, 1980, took her blood pressure, and gave her a prescription. The four different prescriptions issued by Andramuno to the investigator and Calderon on the occasions of their visits to her, were concededly for controlled substances. Hence, her conduct was, in that respect, violative of the New York State public health laws (Public Health Law §§ 3304, 12-b[2] ).
Defendants argue that the Deputy Attorney-General failed to sustain his burden of demonstrating beyond a reasonable doubt that Andramuno was not authorized to practice medicine. It is undisputed that Andramuno is a medical doctor, having graduated from a medical school in Ecuador. Uncontradicted expert testimony reveals that in order to obtain a license to practice medicine in this State, a graduate of a foreign medical school must first pass the "E.C.F.M.G." examination, then put in two years of hospital training, and finally pass what is known as the "Flex Exam". However, the evidence revealed that Andramuno has failed the E.C.F.M.G. examination on numerous occasions, including most recently on July 25, 1979. She, therefore, could not possibly have completed her two year internship prior to the time she practiced medicine as outlined above. Moreover, a search of the records of New York State Education Department revealed that as of February 24, 1981, no one named Elvira (or Lucrecia) Andramuno was licensed to practice medicine in this state.
In conclusion, there is no merit to Andramuno's contention that the Deputy Attorney-General failed to prove she was not licensed under a name she previously used, or that she was not authorized to practice medicine without a license.
While it is true that, in certain limited instances, an unlicensed physician may practice medicine in this State (see Education Law §§ 6525, 6526), the record amply demonstrates that these exceptions are inapplicable in the case of defendant Andramuno. Moreover, she failed to sustain her burden of proving that she was authorized to practice medicine under any such special exception (see generally People v. Bradford, 227 N.Y. 45, 124 N.E. 118; People v. Devinny, 227 N.Y. 397, 125 N.E. 543).
Having established that Andramuno illegally practiced medicine, the Deputy Attorney-General also proved beyond a reasonable doubt that defendant Varas knew of Andramuno's...
To continue reading
Request your trial
-
Corines v. Superintendent, Otisville Cor. Facility
...Division had previously upheld the conviction of a licensed doctor under the same statute. (Id. at 20) (citing People v. Varas, 110 A.D.2d 646, 487 N.Y.S.2d 577 (N.Y.App.Div.1985), leave denied, 65 N.Y.2d 701, 491 N.Y.S.2d 1042, 481 N.E.2d 270 In his Objections, Petitioner argues that the i......
-
People v. Kleiner
...that the defendant was actually licensed when the State shows he is not licensed. The Appellate Division in People v. Varas, 110 A.D.2d 646, 487 N.Y.S.2d 577 [App.Div.2d Dept 1985], held that after the Attorney General demonstrated that no one with the defendant's name was recorded as a lic......
-
People v. Hayon, 2039/2016.
...may conclude that it is reasonable it would still be present in the premises despite the passage of time (see People v. Varas, 110 A.D.2d 646, 646, 487 N.Y.S.2d 577 [2d Dept.1985] [given physician's duty to maintain records it was not unreasonable to believe that the subject records would b......
-
People v. Mercado
...probable cause may still be sufficient if the property sought is such it would be likely to present despite such delay. (People v Varas, 110 A.D.2d 646 [2nd Dept 1985]; People v Fernandez, 210 A.D.3d 693 [2nd Dept 2022]). Here, the nature of the crimes being investigated as outlined in the ......
-
23.44 - 8. Identifying Issues
...the procedure.[3500] . CPL § 470.15(2)(c), (6)(b).[3501] . People v. Thompson, 60 N.Y.2d 513, 470 N.Y.S.2d 551 (1983); People v. Varas, 110 A.D.2d 646, 487 N.Y.S.2d 577 (2d Dep’t 1985); People v. Bennett, 79 A.D.2d 1005, 435 N.Y.S.2d 29 (2d Dep’t 1981); People v. Suitte, 90 A.D.2d 80, 455 N......
-
5.23 - 4. Exceptions And Provisos
...118 (1919).[716] . PL § 265.02(5)(ii).[717] . People v. Gelb, 157 A.D.2d 667, 668, 549 N.Y.S.2d 768 (2d Dep’t 1990); People v. Varas, 110 A.D.2d 646, 647–48, 487 N.Y.S.2d 577 (2d Dep’t 1985).[718] . McKelvey v. United States, 260 U.S. 353, 357 (1992); People v. Sandgren, 302 N.Y. 331, 334, ......