IN New Jersey State Amgad A. Hessein, Nr. A-0983-20, Superior Court of New Jersey, Appellate Division (April 26, 2022) Amgad A. Hessein, a doctor facing a thirty-eight-count charge of billing fraud related to his medical business, was on the verge of starting his trial after completing the jury trial when he pleaded guilty to second-degree fraud by fraud, NJSA 2C: 20-4 (a), and second-degree health insurance claims, NJSA 2C: 21-4.3 (a)).
As part of the basic agreement, the prosecutor gave a gift to Dr. Hessein by dismissing the remaining thirty-six charges because the defendant entered into a consent decision requiring confiscation of $ 2,000,000 and ordered him to pay compensation in the amount of $ 235,093.75.
Before Judge John M. Deitch sentenced the defendant to eight years in prison and ordered the confiscation of funds and restitution, the judge denied the defendant’s request to withdraw his confessions.
In March 2020, the defendant filed a motion to withdraw his confessions of guilty and to serve his sentence. Before the motion was heard, the defendant filed a verified petition for relief after sentencing (PCR), claiming that the lawyer was ineffective by allowing him to bring charges, including “illegal civil consent.” . . forfeit[ing] property and money without. . . a restitution hearing “, and by allowing him to plead guilty” to others[-]degree of health health insurance fraud instead of moving on to a theory three[-]degree of ruthless health[ ]health insurance fraud. “
The defendant also raised an appeal against the appellate counsel, claiming ineffective assistance by a representative by not questioning: the legality of the confiscation order and the lack of a restorative hearing; and the actual basis for the guilty plea of second-degree health insurance fraud. Judge Deitch issued a decision rejecting the defendant’s motion and his PCR statement without a hearing.
In order to withdraw a confession of guilty after convicting a defendant, to determine leave, it is necessary to correct an obvious injustice. In assessing whether relief is appropriate, the exercise judge must weigh the four factors identified in State v. Slater198 NJ 145, 157-58 (2009):
- whether the defendant has asserted a colorful claim of innocence;
- the nature and strength of the defendant’s grounds for withdrawal;
- the existence of a basic hearing; and
- whether a revocation would lead to unfair harm to the state or unfair benefit to the accused.
Applying SlaterJudge Deitch correctly exercised his discretion in finding that those factors did not weigh in favor of the defendant and thus rejected the defendant’s claim because there was no obvious injustice.
With regard to the first factor, the judge considered that the defendant – just as the judge did when he denied the defendant’s previous claim to withdraw culprits confirmed by this court in direct appeal – had not made a colorful claim to innocence.
With regard to the second factor, the judge rejected the defendant’s argument that there was a strong reason to withdraw the action and that the court’s decision on confiscation was illegal because it was based on a “civil consent judgment” used by the State to obtain an unfair supremacy in criminal proceedings. The defendant’s consent decision dealt with both the return and confiscation of the defendant’s property in connection with criminal proceedings, and there was no reference in the decision to a civil judgment or any judgment given against the defendant.
With regard to the third factor, the judge noted that the defendant reached an agreement, which is not usually “given great importance in the balancing process”, and emphasized that the defendant had “the heavier burden of trying to withdraw grounds stated as part of a basic hearing. ” The factor therefore weighed against the defendant.
With regard to the fourth factor, the judge stated that when there are strong grounds for withdrawal, combined with an appropriate claim of innocence, the arguments against allowing the revocation of a ground before the judgment weaken significantly absent unfair prejudices or benefits. The judge held that because the defendant did not offer evidence of the other three factors to support the revocation of his occupant, and the State showed that it would be harmed if a revocation was granted because “many of the [its] witnesses [were] elderly or disabled and could no longer be available at the trial. “The factor therefore weighed against the defendant.
In order to succeed in a PCR claim, a defendant must show: (1) the agent’s performance was deficient and (2) the deficient performance actually damaged the defendant’s defense. Strickland vs. Washington466 U.S. 668, 687 (1984); see also State v. Fritz105 NJ 42, 58 (1987) (assumption of the two-part Strickland test in New Jersey).
There was no inadequate performance by the lawyer who harmed the defendant, therefore the appellant’s representative was not ineffective in not raising an issue which would not have constituted a reversible error in direct appeal. The defendant’s criminal consent requiring forfeiture of money was lawful. The judge aptly reasoned that because “there was no illegal ground hearing to warn [d]against accepting “, the trial lawyer was not ineffective, and therefore” there was no question for the appellate lawyer to raise. “
As for the appellate lawyer’s alleged failure to allege that the trial lawyer erred in allowing the defendant to plead guilty to second-degree health insurance fraud rather than to presenting a theory of third-degree ruthless health insurance fraud, the judge noted the defendant correctly. Other[-]degree of health care [insurance] alleges fraud “, as stated in the minutes of the trial. The judge further commented that the actual adequacy of the defendant’s plea was raised and rejected on direct appeal.
The trial judge correctly found that the defendant could not show that there was any evidence to support a third-degree ruthless health insurance fraud instead of a second-degree crime.
Finally, Judge Deitch did not abuse his discretion by failing to conduct an evidentiary hearing. There were no disputed facts regarding the right to PCR that could not be resolved based on the existing document and the defendant failed to state a prima facie cases of ineffective assistance from assistants.
Insurance criminals have no honor. Dr. Hessein faced a lot of imprisonment, fines and repayment decisions and a trial that accused him of thirty-two cases of gross fraud. He pleaded guilty to a charge and agreed to compensation. After he was sentenced to prison for the foundation, he changed his mind and wanted to withdraw his plea and not end up in prison because most of the witnesses against him were dead or disabled. It was not even a good attempt and he apparently used the fraudulent money he received and which was not taken by the court to fund this stupid, second appeal, to try to withdraw his appeal. Hopefully he will be able to help the health of his fellow prisoners.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his internship to the position of insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry. He is available at http://www.zalma.com and email@example.com.
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