Unlawful Practice of Medicine (Part 1)

On February 24, 2020, a three-judge appellate panel decided the Monmouth County case of State v. Campione, et al. The first principle issue under N.J.S.A. 2C:5-2 involved the propriety of dismissing the indicted unlawful practice of medicine charge against the defendants.

Judge Geiger held in relevant part: The State relied on the Acute contract in conjunction with Campione’s prescribing CDS without Katz’s oversight in support of its allegation that Campione and Katz conspired to engage in the unlawful practice of medicine. The State contends that such a violation of PALA provides the basis for criminal liability. We are unpersuaded by this argument.

“The agreement to commit a specific crime is at the heart of a conspiracy charge.” State v. Samuels, (2007). “It is the agreement that is pivotal.” To sustain a charge of conspiracy the State must demonstrate an “overt act.” N.J.S.A. 2C:5-2(d). Here, the superseding indictment listed five overt acts that it alleged were contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:2-6, and N.J.S.A. 2C:21-20(a), (c), (d) (relating to the unlawful practice of medicine). At its core, the State’s listed overt acts indicate Campione and Katz conspired to violate PALA due to: (1) Katz’s inadequate supervision of Campione; and (2) their failure to file the mandatory “notice of employment” required prior to 2016.

In order to be guilty of conspiracy, a person must, “with the purpose of promoting of facilitating its commission, agree with another person to “engage in conduct which constitutes such crime or an attempt to commit such crime.” N.J.S.A. 2C:5-2(a) (emphasis added). An “agreement to commit a specific crime is at the heart” of the conspiracy statute. State v. Samuels, (2007). A conspiracy requires an “actual agreement with another for the commission of the substantive crime.” State v. Kamienski (App. Div. 1992). An agreement to violate civil statutes or regulations is not a crime.

If the conspiracy count is dismissed, the State will still be free to re-present the case to a new grand jury under a different “overt act” theory. At some point, however, fundamental fairness should bar the repeated presentations of the same case. At that point, the indictment would be dismissed “with prejudice.”