When Granted Non-Custodial Probation it is Insulting to Appeal the Conviction

Posted on April 28, 2021 by Barry Zalma

Insurance Fraud is is Inimical to Public Safety, Welfare and Order

Alexander Goldinsky appealed from a guilty plea to third-degree insurance fraud and was sentenced to two years’ probation instead of being placed in New Jersey’s Pretrial Intervention Program (PTI). In State Of New Jersey v. Alexander Goldinsky, Docket No. A-1474-19, Superior Court Of New Jersey Appellate Division (April 14, 2021) the Appellate Division was asked to reverse Goldinsky’s plea and place him in the PTI.

FACTS

Defendant staged an accident at his workplace. He alleged that he slipped and fell in the cafeteria. Surveillance video revealed that defendant filled a cup with ice, threw the ice on the floor, and laid on top of it. Defendant was transported by ambulance to the hospital, where he told medical personnel that he had slipped, fallen, and injured himself. Defendant knew this false information would be provided to his health insurer, Oscar Garden State Insurance Company (Oscar). Oscar paid $563.49 to cover the ambulance bill.

Defendant’s fraudulent conduct did not end at the hospital. He falsely claimed that as a result of the accident, he developed stuttering speech, suffered from constant headaches, started dropping items when he holds them in both hands, and experienced painful “frozen spasm sensations” and heavy eyelids that wanted to close. Defendant was examined by a neurologist, who despite defendant’s description of the accident and resulting symptoms, concluded: “The stuttering and hypersomnolence are atypical, even for a concussion. It is questionable whether he had a concussion or not. I suspect the symptoms are mainly psychogenic, perhaps a conversion reaction to the stress of the trauma. I doubt these symptoms are due directly to brain injury or a concussion.”

A Middlesex County grand jury returned a four-count indictment charging defendant with multiple counts of insurance fraud.

Defendant, who had no prior juvenile or adult criminal history, applied for admission to PTI. The PTI director recommended defendant’s acceptance into the program. The PTI recommendation report noted defendant was fifty-seven years old, divorced, and reported his mental health as good. The report stated that “defendant was remorseful about the crime . . . and is willing to provide restitution to the victim for their monetary loss.” The report concluded that “PTI would serve as a sufficient sanction to deter future criminal conduct” and that the crimes defendant was charged with were “not [of] such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution.”

The recommendation was overruled by the prosecutor. In a detailed, eight-page, single-spaced letter, the prosecutor considered the statutory factors and concluded defendant was not a suitable candidate for diversion. The court accepted the recommendation of the prosecutor and on the same day defendant pled guilty to count one in exchange for a recommended sentence of non-custodial probation conditioned upon paying restitution in the amount $563.49 to an insurer, and dismissal of the remaining three counts.

Defendant was sentenced in accordance with the plea agreement to a two-year, non-custodial term of probation subject to certain conditions, including making restitution to Oscar Garden State Insurance Corporation in the amount of $563.48 and performing fourteen hours of community service.

ANALYSIS

Defendant sought reversal because he felt that he was entitled to admission to The Pretrial Intervention Program. PTI is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.

PTI is essentially an extension of the charging decision, therefore the decision to grant or deny PTI is a quintessentially prosecutorial function. Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor’s options

In respect of the close relationship of the PTI program to the prosecutor’s charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial. The deference has been categorized as “enhanced” or “extra” in nature. Thus, the scope of review is severely limited.

Trial courts may overrule a prosecutor’s decision to accept or reject a PTI application only when the circumstances clearly and convincingly establish that the prosecutor’s refusal to sanction admission into the program was based on a patent and gross abuse of discretion. A defendant challenging the prosecutor’s recommendation against enrollment into PTI must establish that the decision was a patent and gross abuse of discretion.

Although this was defendant’s first criminal charge, the interests of society may justify the denial of an application for admission into PTI even though a defendant has led an exemplary life except for the conduct which forms the basis of the pending criminal charges. The trial court stated it disagreed with the prosecutor’s decision. It correctly abided by the principle, however, that a trial court must not substitute its own discretion for that of the prosecutor even where the prosecutor’s decision is one which the trial court disagrees with or finds to be harsh.

The Legislature has declared that “[i]nsurance fraud is inimical to public safety, welfare and order within the State of New Jersey” and that “[a]ll New Jerseyans ultimately bear the societal burdens and costs caused by those who commit insurance fraud,” N.J.S.A. 2C:21-4.4(a).

Defendant did not satisfy his burden. He has not proven by clear and convincing evidence that the prosecutor’s rejection of defendant’s PTI application amounted to a patent and gross abuse of discretion. Defendant has not demonstrated that the prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. Nor has he shown that the prosecutor’s decision clearly subverted the goals underlying PTI. The rejection was neither unjust nor unfair.

Conversely, granting defendant PTI would not necessarily serve all the goals of PTI set forth in the statute. The prosecutor properly considered and weighed each of the relevant factors in reaching the decision to reject defendant’s application. The sentence and rejection of PTI was affirmed.

ZALMA OPINION

Insurance fraud is a serious crime – whether effective in great amounts or small – and deserves punishment. There was no question that Goldinsky was guilty of the crime. He faked the trip and fall on video, admitted the crime, and was luck that he was only sentence to two years of unsupervised probation. Instead, he appealed the chance to avoid a conviction and wasted the time of the appellate court. His crime was clear, premeditated and effective. He deserved jail time and avoided it.

? 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost

equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at https://www.zalma.com and [email protected].

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/ podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4