| People v Boothe |
| 2009 NY Slip Op 08859 [68 AD3d 402] |
| December 1, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v JamesO. Boothe, Respondent. |
—[*1] Stillman, Friedman & Shechtman, P.C., New York (Paul Shechtman of counsel), forrespondent.
Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or aboutDecember 19, 2008, which, to the extent appealed from, dismissed those counts of theindictment alleging insurance fraud in the first degree, scheme to defraud in the first degree andfalsifying business records in the first degree, unanimously modified, on the law, to the extent ofreinstating the scheme to defraud and falsifying business records counts, and otherwise affirmed.
The court properly dismissed the insurance fraud count. The People allege that defendant, aschief operating officer of a managed health care provider, caused marketing plans containingfalse statements to be kept on file by the provider and submitted to contracting governmentagencies, enabling the provider to obtain Medicaid reimbursements to which it was not entitled.Penal Law § 176.30 prohibits fraudulent insurance acts involving thefts or attempted theftsin excess of $1 million. Under Penal Law § 176.05 (1), a fraudulent insurance act, asrelevant here, consists of the presentation with fraudulent intent of a false written statement inconnection with a policy for either commercial or personal insurance. It is undisputed thatconduct involving health insurance does not come within that definition. Although in 1998 theLegislature added a provision defining fraudulent health care insurance acts (Penal Law §176.05), it neglected at that time to do anything to criminalize those acts. It left intact Penal Law§ 176.30, and the other degrees of insurance fraud, which only criminalized fraudulentinsurance acts.
It is plain from the statutory definitions that fraudulent insurance acts and fraudulenthealth insurance acts involve different conduct, that the latter type of conduct is notincluded in the former, and that only the former type is criminalized in Penal Law article 176. Itshould be noted that subsequent to the conduct alleged in this case, the Legislature enacted aseparate health care fraud statute (Penal Law art 177).
"A statute must be read and given effect as it is written by the Legislature, not as the courtmay think it should or would have been written if the Legislature had envisaged all the problemsand complications which might arise" (Lawrence Constr. Corp. v State of New York,293 NY 634, 639 [1944]). Regardless of whether the Legislature intended to criminalize thenewly defined category of fraudulent health insurance acts at the time it defined those acts, andregardless of whether its failure to do so was an oversight, "courts are not to legislate under the[*2]guise of interpretation" (People v Finnegan, 85 NY2d53, 58 [1995], cert denied 516 US 919 [1995]; see also People v Tychanski, 78NY2d 909 [1991]). While the Legislature's definition of certain conduct, accompanied by itsneglect to criminalize that conduct, may have rendered the definition useless, the fact remainsthat the conduct in question was never criminalized under the statute at issue. Accordingly,defendant's alleged conduct did not constitute the crime of insurance fraud.
However, the court should not have dismissed the count alleging scheme to defraud(see Penal Law § 190.65). Although there may have been no evidence before thegrand jury that defendant personally obtained any property from the scheme, the evidence andthe instructions to the grand jurors would support an accessorial theory of liability.
The court also erred by dismissing three counts alleging falsifying business records in thefirst degree (Penal Law § 175.10). Under the circumstances alleged, the marketing planswere writings "kept or maintained by an enterprise for the purpose of evidencing or reflecting itscondition or activity" (Penal Law § 175.00 [2]). The health care provider was required tomaintain these records, as well as to file them with certain government agencies. Accordingly,the fact that defendant was also charged with offering a false instrument for filing (Penal Law§ 175.35) in connection with these plans did not preclude prosecution for the separate actof fraudulently keeping them. Concur—Tom, J.P., Friedman, Nardelli, Buckley andRichter, JJ.