The three-judge panel concluded with the following in relevant part: The two offenses charged under N.J.S.A. 2C:21-20 are “separate and distinct” because they have different elements and require different proofs. See State v. Krieger (App. Div. 1995) (finding duplicitous a single indictment count charging violation of N.J.S.A. 2C:29-3(a) or 3(b), which were “alternative crimes with disparate elements”). When two distinct offenses are charged in a single count, “there is no way of knowing” if a petit jury returning a general verdict was unanimous as to both offenses. Trade Waste (quoting United States v. Starks, (3d Cir. 1975)). Likewise, by charging Rodriguez in the disjunctive, it is unclear whether a requisite number of grand jurors agreed to indict under subsection (c) alone. See R. 3:6-9(a) (requiring concurrence of twelve or more grand jurors). Therefore, we affirm the dismissal of count three of the indictment in its entirety.
The failure to clearly instruct the grand jury as to the appropriate scope of a medical assistant’s practice also tainted the counts charging theft by deception, health care claims fraud, and conspiracy to commit health care claims fraud. The crux of the deception and the fraud was that Dr. Ferraro sought reimbursement for procedures and activities that Rodriguez performed, by falsely conveying Dr. Ferraro performed them instead. Menendez stated that only licensed health care professionals had identification numbers to bill insurers for services. Thus, any procedure or activities a medical assistant performed would have to be billed under the supervising physician’s number. It was essential for the grand jury to know what procedures or activities a medical assistant could lawfully undertake in order to fairly decide whether Rodriguez, Dr. Ferraro, or Galvan intended to deceive or defraud Horizon. There is a sense that the prosecution would only appeal the granting of a motion to dismiss an indictment if they wanted to send a message to the trial judge. It takes far less work to re-present a case to a grand jury than it does to brief and argue an appeal before the Appellate Division.