Vacco v. Consalvo

• Decision Date: 13 January 1998
• Citation: 670 N.Y.S.2d 703,176 Misc.2d 107
• Parties: , 1998 N.Y. Slip Op. 98,125 In the Matter of Dennis C. VACCO, as Attorney-General of New York State, Petitioner, v. Anthony CONSALVO, Respondent.
• Court: New York Supreme Court

Page 703

670 N.Y.S.2d 703

176 Misc.2d 107, 1998 N.Y. Slip Op. 98,125

In the Matter of Dennis C. VACCO, as Attorney-General of New York State, Petitioner, v. Anthony CONSALVO, Respondent.

Supreme Court, Bronx County.

Jan. 13, 1998.

Dennis C. Vacco, pro se.

Michael R. Berlowitz, New York City, and Paul Wojtaszek, Lockport, for Dennis C. Vacco, petitioner.

Bruce Goldstone, New York City (Judy A. Lang, of counsel), for respondent.

DOMINIC R. MASSARO, Justice.

By Order to Show Cause, the Attorney General has commenced a special proceeding to determine why, pursuant to sections 750 A(3) and 751 of the Judiciary Law, Anthony Consalvo should not be adjudged guilty of criminal contempt for having willfully disobeyed a Court-ordered mandate. The putative contemnor is so found and adjudged.

Background

Respondent, Anthony Consalvo, is a podiatrist who was registered as a Medicaid provider in New York on December 24, 1985. Under Indictment No. 8063/93, he was charged with larceny accomplished through fraudulent Medicaid billing practices during the period July 1986 and May 1992. He entered a plea of guilty to the charge of grand larceny in the fourth degree (Penal Law, Sec. 155.30 [5]) on May 10, 1994. The promised sentence upon which Dr. Consalvo negotiated the plea encompassed two components: a jail component--six months in a city institution--and a restitution component--one-half million dollars. On the date he was sentenced, November 4, 1994, the Attorney General commenced a civil law suit against Dr. Consalvo to recover Medicaid overpayments. Therein was demanded the production of all patient charts from January 1986 to the date of the action. Before commencement of sentence, Dr. Consalvo moved to vacate the plea of guilty. The motion was denied, and Respondent made known his intention to appeal. Respondent's payment of the $500,000, which had been ordered by the trial Court, was placed in escrow pending the appeal; and the Appellate Division granted a stay of execution of the jail portion of his sentence.

Respondent's contentions on appeal included challenges to the guilty plea and to the restitution. The judgment was affirmed in all respects in the Appellate Division (222 A.D.2d 302, 636 N.Y.S.2d 3 [1st Dept., 1995]); the Court of Appeals likewise affirmed the judgment (89 N.Y.2d 140, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996]). While rejecting Respondent's challenge to his guilty plea and the jail component of the sentence, however, the Court of Appeals determined that the doctor was not precluded by his negotiated plea agreement from demanding a hearing on the amount of restitution properly due. Thus, a restitution hearing was ordered. Pending final resolution of the issue, the trial Court maintained the status quo as to the funds surrendered--the $500,000 remained in escrow--and as to defendant's liberty--commencement of the six-month jail sentence was stayed pending formal announcement of sentence following the final order as to restitution.

Procedural History

On March 14, 1997, in the midst of the restitution hearing, Dr. Consalvo was served with a subpoena duces tecum directing him to produce on the return date, March 21, 1997, the following:

All patient charts as required by law, for the Medicaid patients of Anthony Consalvo, D.P.M., for the period January 1, 1988 to March 31, 1993. Patient charts must be complete and original documents, not copies. See attached "Schedule A" for the names and I.D. numbers for the above referenced charts.

On March 21, 1997, Respondent's attorneys made an application to quash the subpoena. In so moving, counsel argued that it would be too costly to photocopy the patient charts. Counsel stated in her affirmation:

In addition to the foregoing, the cost to the defendant to reproduce 2,000 patient charts which he needs for his defense at said restitution hearing, is one which he cannot sustain. (Emphasis added.)

The motion was denied and Dr. Consalvo was ordered to comply with the subpoena. On the adjourned date, Respondent produced 346 Medicaid patient charts, far short of the 2,176 ¹ patient charts required to be produced pursuant to the subpoena and the court's directive.

Findings of Fact

The first witness called by Petitioner was Julie Ann Roche, the sole office assistant who worked for Dr. Consalvo.

With regard to the filing of patient charts, Ms. Roche testified that she filed the charts in one of two file cabinets, each cabinet contained four drawers. All patient charts, including those receiving Medicaid, were filed throughout the two file cabinets. In all of the last six years that Ms. Roche worked for Dr. Consalvo, she testified that she never discarded any patient chart; never asked his permission to discard a patient chart; never heard him ask her to discard a patient chart; and never observed the doctor discard any patient chart.

On March 25, 1997, Ms. Roche herself was served with a subpoena duces tecum directing her to bring all Dr. Consalvo's original Medicaid patient charts for all Medicaid patients treated by him for the period January 1, 1988 to March 31, 1993. Ms. Roche searched the office's computerized files as well as the file cabinets. In spite of diligent efforts, she was unable to locate a single patient chart.

According to Ms. Roche, when she told Dr. Consalvo that she was looking for the charts, he said in words and substance, "do what you have to do." While she testified that Respondent never stated to her that he had discarded the patient charts and/or deleted their names from the computer roster, Ms. Roche testified that besides herself, nobody else worked for Respondent and nobody, except Dr. Consalvo himself, had a key to the office.

The second witness called by the Petitioner was Bernice Polinsky, a senior auditor for the Attorney General. She testified relative to an inventory she conducted of the patient charts Dr. Consalvo did turn over to the Court. Ms. Polinsky testified that he turned over 346 incomplete Medicaid patient charts out of a total of 2,176.

Ms. Polinsky stated that podiatrists in the Medicaid program were required to maintain patient charts for at least six years. She calculated that six years from the time of the subpoena would extend the period back to March 14, 1991. By calculating back six years, Ms. Polinsky determined that 772 unique Medicaid patients were "treated" by Dr. Consalvo between March 14, 1991 and March 31, 1993. Ms. Polinsky also testified to the Board of Regents rule which requires that Medicaid charts be maintained for all minors until one year after their reaching the age of 21. According to Ms. Polinsky, this would have required Respondent to include the charts for 259 minor children irrespective of the six-year period. He produced only 20 such charts.

Thus, at the very least, out of a total of 772 unique Medicaid patient charts and 259 minor Medicaid patient charts, hundreds, 665 it would appear, were "missing" from the inventory. This figure represents the remaining charts required to be kept for six years (426) and charts of minors that are required to be kept until after the minor attains his majority (239).

Besides conducting an inventory, Ms. Polinsky testified as to telling observations concerning the 346 patient charts that were produced: numerous of them had missing patient history entries, literally "ripped out"; service dates prior to 1991 were almost totally unaccounted for. Then, too, photocopies had been inserted in place of original pages in instances where earlier, but not later "treatment" information is missing.

No witnesses were called on Dr. Consalvo's behalf.

Conclusions of Law

Section 750A(3) of the Judiciary Law authorizes a court to punish as a criminal contempt "willful disobedience to its lawful mandate." The essential predicate for the contempt adjudication is a clear direction to one sought to be punished for disobedience in following it. In the instant case, the subpoena duces tecum combines with an unequivocal order to produce the patient charts issued personally to Respondent in open court to make for sufficiency (see Matter Ithaca Journal News, 57 Misc.2d 356, 292 N.Y.S.2d 920 [1968]).

Knowledge, not formality of service, is the determinative factor (see People ex rel. Davis v. Sturtevant, 9 N.Y. 263 263 [1853]; see, also, Paine v. Pioneer Warehouse Corp., 61 A.D.2d 756, 402 N.Y.S.2d 5 [1st Dept., 1978]; Springs v. Reid, 139 App.Div. 551, 124 N.Y.S. 205 [1st Dept., 1910]). And an oral order is served upon all those assembled to whom it is directed (see People ex rel. Illingworth v. Court of Oyer & Terminer, 10 A.D. 25, 41 N.Y.S. 702 [1st Dept., 1896]).

Here, disobedience of the subpoena and the court order is in the form of affirmative conduct. Respondent, either by design or otherwise rendering himself unable to do so, opted to produce a total of only 346 patient charts; further, in more instances than not, he produced only portions thereof (e.g., deleting patient histories, omitting service date entries for earlier than 1991) while completely refusing to produce 1,830 charts.

Petitioner has established beyond a reasonable doubt (see County of Rockland v. CSEA, 62 N.Y.2d 11, 475 N.Y.S.2d 817, 464 N.E.2d 121 [1984]) that having direct knowledge of the order concerning production of all 2,176 original patient charts, Respondent willfully disobeyed the court mandate. Section 750A (3) of the Judiciary Law speaks in terms of a willful disobedience to a court order. In this context, "willfulness" means no more than knowing and intentional (see, e.g ., Goldfine v. United States, 268 F.2d 941 [1st Cir., 1959]; United States v. Armstrong, 781 F.2d 700 [9th Cir., 1986]; United States v. Nightingale, 703 F.2d 17 [1st Cir., 1983]).

It is well stated that in a motion to punish a party for criminal contempt where failure to produce certain books and records is extant, the petitioner is required to prove beyond a reasonable doubt that the documents were in...