Thursday, October 9, 2008

Conviction Overturned

A criminal conviction against an attorney and his law firm was reversed on grounds of insufficient evidence by the New York Appellate Division for the Second Judicial Department. The convictions involved charges of a scheme to fraud and filing false instruments in connection with personal injury claims. The court concluded:

The People failed to prove that the defendants obtained property from any person by means of "a systematic ongoing course of conduct with intent to defraud." The only proof as to any discrete sums of money and/or property obtained from anyone, other than of transfers and payments to and from the defendants themselves, was testimony from three injured accident victims that they received "settlements," apparently from insurance companies, or payments from the defendant Law Offices of Silverman & Taylor (hereinafter S & T). However, there is no proof that this money was obtained by false or fraudulent pretenses.

In fact, all of these accident victims testified at trial that they were involved in real accidents and suffered property damage and/or pain and suffering as a result thereof. Thus, there was a prima facie legitimate basis for the insurers to make those payments. The People did not challenge the legitimacy of the accidents.

Five accident victims testified at trial as to their visits to various medical clinics, individual chiropractors, therapists, and acupuncturists. Although the People's expert witness, physiatrist Philip Harris, testified that, in his opinion, some of the care provided was excessive or unnecessary, neither he nor anyone else provided proof as to any amounts paid for that care, let alone how much of it was excessive or even unwarranted. Harris also admitted that there can be reasonable disagreements as to the treatments and or tests that were warranted. Crucially, he refused to comment as to whether or not any of the accident victims who testified were or were not injured and/or whether or not they needed at least some of the treatment provided. In short, there was no testimony that "property with a value in excess of one thousand dollars" was obtained "from more than one person by false or fraudulent pretenses, representations or promises," let alone proof of an intent to defraud.

The evidence was also insufficient as to the four counts of offering a false instrument for filing in the first degree (see Penal Law ยง 175.35). Those counts charged that, on four different dates, and "knowing that a written instrument, namely a retainer statement, contained a false statement and false information, and with the intent to defraud the state and any political subdivision, public authority, and public benefit corporation of the state, [the defendants] offered and presented it to a public office, namely, the New York State Office of Court Administration (OCA) with the knowledge and belief that it would be filed with, registered and recorded in, and otherwise become a part of the records of OCA" [emphasis added].

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/10/a-criminal-conv.html

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