People v. Notey

OPINION OF THE COURT Per Curiam. By this appeal the defendant challenges only the sentences of imprisonment imposed on him. He was charged under two indictments totaling 36 counts, with the commission of the crimes of conspiracy in the third degree (2 counts), grand — 280 — larceny in the second degree (15 counts), attempted grand larceny in the second degree (1 count), offering a false instrument for filing in the first degree (14 counts), and falsifying business records in the first degree (4 counts). He pleaded guilty to two counts of grand larceny in the second degree in satisfaction of the indictments. He was sentenced to an indeterminate term of imprisonment with a maximum of four years and a fine of $187,000 on one count, and an indeterminate term of imprisonment with a maximum of four years and a fine of $182,000 on the other count, the terms of imprisonment to run concurrently. The fines—$369,000 in all—are not contested by the defendant. He urges that the sentences of imprisonment are inappropriate and, in view of the state of his health, cruel and unusual. After consideration of the presentence report of the Probation Department, recommending a conditional discharge and suitable fines, the facts developed at the medical hearing held before sentencing, the sentencing minutes, and the background and present status of the defendant, we modify the sentences by deleting the concurrent terms of imprisonment and place the defendant on probation for five years, with conditions to be imposed by the County Court. I The defendant, a physician, owned and operated with his two sons four proprietary nursing homes on Long Island. In addition, he was the controlling partner and director of two proprietary hospitals on Long Island. The indictments were based on the larceny of large sums of money from the State of New York through the Medicaid program and from insurance carriers by submitting false claims for reimbursement of inflated or fictitious expenses supposedly incurred in the operation of the nursing homes and hospitals. Though the record does not delineate the exact amount of money received by means of the false claims, the prosecution stated at the time of sentence that approximately $3,000,000 had been thus obtained. That, indeed, more than $1,000,000 had been paid to the defendant by the submission of fraudulent claims is evident from the agreement entered into by the defendant, as part of the plea negotiations, whereby the defendant "contracted” to make restitution of $1,250,000 to the State, of which $1,000,000 has already been paid, and the additional $250,000 is to be paid on or before March 19, 1980. — 281 — The presentence report, compiled following the defendant’s plea of guilty of two counts of the indictments, disclosed that he was suffering from serious and disabling physical ailments which, in the opinion of the Probation Department, made it inadvisable that the defendant be incarcerated; instead, the report recommended that these circumstances, together with the defendant’s age, past background, and probable future activities, justified a sentence of appropriate fines and a conditional discharge. The prosecution requested that an evidentiary hearing be held, at which medical evidence would be produced concerning the defendant’s physical condition. Three doctors, all called by the prosecutor, testified at the hearing directed by the court. Dr. Frank Miller, an urologist, testified that the defendant, due to an operative accident which occurred early in his life, had suffered an urethral stricture, as a result of which an urethral dilation to relieve the accumulation of urine is required periodically about every three weeks to a month at a time. Dr. Miller has been performing the dilation at a hospital, preceded by the injection of spinal antibiotics which help to suppress infection. A cardiologist is also present at the time of the procedure, because the defendant is suffering from a bifurcicular heart block. Dr. Miller was of the opinion that the defendant would eventually die from his urological problem, either incident to a cardiac arrest during the dilation, or due to septicemia. Dr. Miller testified that the dilation procedure is difficult, since the stricture is circuitous and several false passages have developed because of procedures poorly executed in the past. If the instrument used in the dilation should enter a false passage, a perforation of the area between the bladder and the rectum would prove fatal. Dr. Miller stated that hospitalization was necessary for the procedure, and that the defendant would fare badly in prison; Dr. Miller could not treat him in prison.1 Dr. Abraham Azulay, a cardiologist, testified that the defendant was a diabetic and had a bifurcicular heart block. All of the defendant’s ailments are interrelated. Dr. Robert Goldstein, an internist, testified that he had been treating the defendant for control of diabetes through the — 282 — administration of insulin. The defendant is now 73 years old and has been a diabetic for about 17 years. As a result of his urethral problem, the defendant has been septic on several occasions, a serious condition particularly because of the diabetes and cardiac involvement from which the defendant suffers. In his opinion, the defendant would not live long in jail, and Dr. Miller is the only physician who can perform the urethral dilation on the defendant. In sentencing the defendant, the court stated that it was imposing imprisonment because of the nature of the crime, the large size of the sums of money received by the defendant, and to vindicate the law. As to defendant’s physical condition, the court said that there were facilities within the penal system for treatment of his ailments and that, in addition, furloughs might be granted by the head of the prison for temporary release of the defendant to be treated elsewhere. II It is our duty in reviewing the defendant’s sentence to examine the record in the light of the objectives of the penal system and to make a decision based on the particular facts of the case (ABA Standards Relating to Appellate Review of Sentences, Approved Draft, § 3.1; cf. People v Gittelson, 25 AD2d 265, 271-272, affd 18 NY2d 427; People v Cotter, 25 AD2d 609, 610). Generally, four principles have been accepted as objectives of criminal punishment: deterrence; rehabilitation; retribution; and isolation (Pugsley, Retributivism: A Just Basis for Criminal Sentences, 7 Hofstra L Rev 379, 381).2 The primary responsibility for imposing a condign sentence rests on the Trial Judge, and the determination of the kind and limits of punishment made by the Trial Judge should be afforded high respect. In setting sentence the Trial Judge should be guided not only by the four objectives of punishment, but also by the criterion that a minimum amount of confinement should be imposed "consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the — 283 — defendant” (ABA Standards Relating to Sentencing Alternatives and Procedures, Approved Draft, § 2.2). It is the sensitive balancing of these objectives and criteria in the individual case that makes the process of sentencing the most difficult and delicate decision that a Judge is called upon to perform. In the end, the court must weigh the demands of the community for punishment against the individual posture of the defendant. Each case differs, and no case is necessarily a precedent for the next, except to the extent that disparity in the treatment of individuals similarly situated should be avoided (People v Golden, 41 AD2d 242). Indeed, agreement as to the societal objectives of punishment in the abstract is generally shared; the problem before the courts in obtaining those objectives springs not only from the relative priority to be attached to each objective but also in the temperament, mental and physical condition, past social history, and economic circumstances of the individual defendant. We cannot ignore the personal status of the defendant as the most significant factor in the sentencing process. The American Law Institute’s Model Penal Code has suggested several considerations bearing on the individual aspect of the sentence relating to the harm caused or contemplated by the defendant, the excuse or provocation, if any, for the defendant’s conduct, the restitution which may compensate for the harm done, the prior criminal history of the defendant, the likelihood of recurrence of the defendant’s conduct, and whether imprisonment would result in excessive hardship to the defendant (Model Penal Code, § 7.01, subd [2]). Doubtless, all of these considerations, even though not so precisely articulated, occupy the mind of the sentencing Judge, and it is in the relative weight to be assigned to these factors that differences in view may emerge. Moreover, always in the background of the sentencing process are the requirements of the Eighth Amendment. "The Amendment embodies 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . .,’ Jackson v. Bishop, 404 F. 2d 571, 579 (CA 8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with 'the evolving standards of decency that mark the progress of a maturing society,’ Trop v. Dulles [356 US 86], supra, at 101; see also Gregg v. Georgia [428 US 153], supra, at 172-173 (joint opinion); Weems v. United States [217 US — 284 — 349], supra, at 378, or which 'involve the unnecessary and wanton infliction of pain,’ Gregg v. Georgia, supra, at 173 (joint opinion); see also Louisiana ex rel. Francis v Resweber, 329 U.S. 459, 463 (1947); Wilkerson v Utah [99 US 130], supra, at 136.” (Estelle v Gamble, 429 US 97, 102-103; see, also, Laaman v Helgemoe, 437 F Supp 269, 323; Johnson v Harris, 479 F Supp 333.) It is with these considerations in mind that we must make our own independent examination and assessment of the record—the "second look at the sentence in light of the societal aims which such sanctions should achieve.” (Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale LJ 1453.) Ill There is little, if any, conflict in the facts before us. The sentencing Judge laudably directed a hearing to be held concerning the physical condition and medical history of the defendant. The social and economic history of this 73-year-old defendant is clearly set forth in a full and dispassionate presentence report of the Probation Department. We would be disposed to affirm the sentence imposed, were it not for the physical condition of the defendant. Despite the unblemished background of the defendant, his praiseworthy struggles to improve himself and his community since his emigration to this country as a doctor from Europe many years ago, his charitable contributions, his army service, and the honors awarded to him, the immensity of the fraud, both in money and in impact on the operation of the Medicaid program, would justify the imprisonment as a means of deterrence, not so much for the defendant, in view of his age, but for others who might be tempted, and as a reflection of community condemnation of the conduct of the defendant. We are persuaded, however, that modification of the sentence is required by the undisputed testimony of the doctors called by the prosecution that imprisonment will in all probability result in the defendant’s death. That testimony establishes clearly that the defendant’s peculiar and serious urological condition can be treated only in a hospital by Dr. Miller through an operative procedure, and that his condition is complicated by diabetes and cardiac dysfunction tending to make the treatment even more difficult. It must be concluded from the medical testimony that treatment in a prison setting — 285 — would be virtually impossible, and if attempted, perilous to the life of the defendant. In our opinion, and contrary to the view expressed in the dissent, extraordinary circumstances do exist herein which warrant the exercise by this court of its discretion so as to modify the sentence with respect to the terms of imprisonment. While concededly death eventually claims everyone, the innocent as well as the guilty, such truism should never deter this court from setting aside a term of imprisonment where it is manifest that incarceration would hasten the death of a defendant, yet confer little or no benefit upon the general public (cf. People v Browarnik, 42 AD2d 953). The alternative of furloughs from the prison for medical treatment suggested by the sentencing Judge is impractical under the circumstances. We see no benefit to the community in the constant interruption of confinement by the defendant’s release and travel over a period of days for treatment every three or four weeks. In short, little is gained by the community and much might be lost to the individual by his incarceration (cf. People v Browarnik, supra), which on this record approaches the imposition of cruel and unusual punishment. The large fines inflicted on the defendant—$369,000—and the restitution which he has agreed to make —$1,250,000— compensate substantially for the defendant’s wrongdoing. His past history and age make it most unlikely that he will ever be criminally involved again. Accordingly, we modify the sentences by deleting the concurrent terms of imprisonment and imposing probation for five years, the conditions of which shall be fixed on remand by the trial court. Probation will meet the approved criteria for the appropriate punishment of the defendant. (See ABA Standards Relating to Probation, Approved Draft, § 1.3.) Footnotes [1] Dr. Miller, although engaged in treating the defendant, on cross-examination testified that he was not friendly with the defendant and had no respect for him as a doctor or a man; he was engaged in litigation with the defendant over the management of one of the hospitals, in which the witness had an interest. [2] Deterrence includes both individual deterrence and deterrence generally in the community. Rehabilitation is directed toward the reform of the individual. Retribution represents the condemnation of the community for the commission of the offense and the public expectation that the individual shall receive punishment proportionate to his wrong. Isolation is required when the individual is a continuing threat to the community.