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“Criminal Enterprise” Does Not Require Continuity of Criminal Participants

In a full-fledged opinion by Justice Tom, the First Department determined that, with respect to “enterprise corruption,” the term “criminal enterprise” (Penal Law 460.10[3]) requires “a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents”…, not criminal “participants[.]”  The case involved fraudulent billing of insurers by the defendants who were hired to provide medical and chiropractic services by one Vinarsky:

Both defendants * * * argue that because Vinarsky was essential to the operation of the [clinic], it lacked the structure to maintain the necessary continuity of existence in his absence. Thus, they conclude, the clinic did not meet the statutory requirements of a criminal enterprise essential to sustain conviction for their participation in its operation. * * *

The evidence before the jury amply demonstrates that defendants were engaged in a criminal enterprise overseen by Vinarsky. It embraced more than one clinic, extended over a period of years, and involved a succession of patients whose medical history was used to procure income by an organization structured to facilitate the fraudulent billing of insurers, which paid some $6 million for services allegedly provided by the … clinic. Thus, the jury was warranted in concluding that the criminal enterprise had a continuity that extended beyond any individual patient or transaction. People v Keschner, 2013 NY Slip Op 05975, 1st Dept 9-24-13

 

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