IntroductionOn June 18, 2015, the Supreme Court of New Jersey published the final chapter of the Pretrial Intervention (PTI) travails of the Bergen County Prosecutor's Office in its case against Carlstadt Mayor William Roseman and Lori Lewin, his ex-wife. I blogged about this ordeal previously after the trial court compelled Roseman's and Lewin's admission into PTI in 2012. Unhappy with this result, however, the State appealed, and the issue went to the New Jersey Supreme Court. This week the Supreme Court decided the Bergen County Prosecutor Office's denial of the PTI application by Roseman and Lewin was a patent and gross abuse of discretion.
NarrativeThe co-defendants were married between 1992 and 2000, and during this time Roseman was elected Mayor of Carlstadt. Lewin received dental, medical, and prescription benefits under the Carlstadt insurance plan. After the divorce, Lewin was supposed to be removed from the plan. But this detail was overlooked because of an administrative error by a payroll clerk.
Between 2000 and 2007, approximately 100 Explanations of Benefits (EOBs) addressed to Roseman were sent to the marital residence where Lewin resided after their divorce. Thirteen EOBs were for services provided to Lewin because her health care providers had kept the information about her coverage under the Carlstadt plan.
In 2007, Carlstadt changed its insurance plan. Lewin's coverage came to light, and Roseman took immediate steps to disclose this and remove her from the plan. Lewin resubmitted the claims, and personally paid for any time-barred claims.
Law and PoliticsA former councilmember snitched, inviting an investigation by the Bergen County Prosecutor's Office. The government indicted the divorced couple in July 2009 on one count each of third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree theft by deception, N.J.S.A. 2C:20-4; and second-degree official misconduct, N.J.S.A. 2C:30-2a.
The sentencing exposure for second-degree official misconduct is between 5 years and 10 years New Jersey State Prison. Additionally, the charge entails a presumption of incarceration, even for a first-time offender. And the sentencing exposure for third-degree theft by deception and third-degree conspiracy is between 3 years and 5 years New Jersey State Prison. These terms are in addition to other fines and penalties. Additionally, a first-time offender charged with a second degree crime is not necessarily eligible for PTI.
New Jersey Law defines theft by deception as purposely obtaining property of another by deception. The material element "deception" is defined as:
- Purposely creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression about soliciting or collecting funds for a charitable purpose; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
- Purposely preventing another from acquiring information that would affect his judgment of a transaction; or
- Purposely failing to correct a false impression the deceiver previously created or reinforced, or the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.N.J.S.A. 2c:2-2 (emphasis added). New Jersey law defines official misconduct as,
A public servant purposely obtaining a benefit for himself or another or injuring or depriving another of a benefit by committing an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.N.J.S.A. 2C:30-2a. In defining the material element of knowledge, New Jersey law provides,
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.N.J.S.A. 2c:2-2 (emphasis added).
The Bergen County Prosecutor's Office obtained the consent of the Attorney General to allow Roseman into PTI, but only if Roseman would agree to resign and be subject to a lifetime disqualification from office. To sweeten the deal, the prosecutor would also have dismissed the indictment against Lewin if Roseman was admitted into PTI under those conditions. Roseman and Lewin ultimately rejected this deal.
Confirmation BiasConfirmation bias is the tendency to search for, interpret, or recall information in a way that confirms one's beliefs or hypotheses. It also manifests itself when people interpret ambiguous evidence as supporting their existing position.
To indict these people under these statutes demonstrates a completely unrealistic understanding of marriage, divorce, and life in general by the Bergen County Prosecutor's Office. According to the Supreme Court opinion, it appears the insurance policy was not the most important priority for either Roseman or Lewin. Apathy, however, is not criminal.
Roseman had reported the divorce to the town clerk. Additionally, he alerted the town when the coverage came to light in 2007. Furthermore, Lewin was covered by her employer during the relevant times. She took care of having her employer's insurance pay for the treatment that Carlstadt's policy had covered, and she paid for any claims that her were not covered.
- Does this sound like a case of theft?
- Did these people act "deceptively" as defined by the statute?
- Did they act "deceptively" from the perspective of common sense?
- Does it sound like a case of "official misconduct?"
- Is it what the lawmakers intended when this statute was enacted?