New York Criminal Defense Attorney Blog

The United States Attorney for the Southern District, Preet Bharara, has had a busy few months, with successful large scale prosecutions against health insurance officials, New York State lawmakers, and inside trading investment bankers. On October 27, 2011, the latest bombshell was dropped: Several former L.I.R.R. workers, including a former railroad union president, and two physicians, have been charged in a massive fraud scheme which could end up costing the U.S. Railroad Retirement Board up to one billion dollars. The charges are premised on a scheme in which former L.I.R.R. employees, who were eligible to retire on a pension at age 50, would be seen by three physicians, Dr. Peter J. Ajemian, and Dr. Peter Lesniewski, (and a third unnamed doctor who recently died), who would prepare false medical assessments in support of the employees’ disability pensions, which would be paid in addition to the retirement pensions. Allegedly, these three doctors were involved in 86% of the false disability applications. The U.S. Government alleges that the doctors were paid between $800.00 and $1,200 in cash for each false assessment and narrative reports, along with millions of dollars to perform unnecessary medical treatments.

The former employees would be able to receive disability and general pension funds which equaled their pre-retirement income. The discovery of the purported fraud was developed from videotapes of many of the defendants playing golf, tennis, working out at the gym and going on 400 mile bike rides, while having claimed that they suffered from severe and disabling back, neck and other injuries. Allegedly, surveillance video obtained by the government depicts one defendant at the gym for over two hours after claiming she could no longer walk stairs, and another defendant shoveling snow for 40 minutes after alleging that she could no longer stand for more than five minutes and had terrible shoulder and hand pain. In the case of the former railroad union president, Joseph Rutigliano, he allegedly never took a sick day, worked 570 hours of overtime in the 12 months before his retirement, and then received disability payments after his retirement in 2006. Rutigliano is also charged as a “facilitator” in assisting other employees in preparing false applications for disability benefits.

Mr. Bharara noted that: ”Employees, in many cases, after claiming to be too disabled to stand, sit, walk or climb steps, retired to lives of regular golf, tennis, biking and aerobics.” The 74 page complaint filed in the United States District Court in Manhattan on Thursday, October 27th charges the defendants under Section 18 of the United States Code, section 1347, which states in pertinent part as follows:

“Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both;”

The defendants were also charged under section 1349, the conspiracy statute, which states:

“Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

It appears that one of the reasons that the scheme was uncovered was reporting in the New York Times as early as 2008 in which it was noted that the federal Government Accountability Office found that LIRR employees applied for disability pensions 12 times as often as any other commuter railroad. MTA data showed that 79% of LIRR employees over the age of 50 received disability benefits from 2004 through 2008. Additionally, the defendants seemed to have not been at all concerned that the scheme would be uncovered. The federal complaint alleges that one of those charged was receiving $105,000 in pension and disability benefits while playing tennis several times a week and golf 140 times during a nine month time frame.

The defendants were arraigned on October 27th and October 28th, with most released on personal recognizance bonds, which would be forfeited if they failed to appear in Court. If convicted on all charges, the defendants could be facing up to 20 years in prison under federal sentencing guidelines.

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On October 12, 2011, Barbara Sheehan, the 50 year old Queens mother charged in the shooting death of her husband Raymond Sheehan, was acquitted by a Queens County jury of 2nd degree murder but convicted on a gun possession charge. The case achieved both national and international notoriety as a test of the “battered woman” defense, by which the defendant claims to have committed a violent act due to fear for her life.

The shooting occurred on February 18, 2008 in their Howard Beach, New York residence. Ms. Sheehan shot her husband 5 times using a .38 revolver. When Mr. Sheehan reached for, and then lost control of his 9 mm Glock, Ms. Sheehan grabbed that weapon before he could retrieve it and shot him an additional 6 times.

Ms. Sheehan’s defense was premised on a 17 year history of both physical and verbal abuse by her ex-police sergeant husband, who she alleges committed acts including throwing boiling hot pasta sauce at her, smashing a phone in her face, and locking her out of the house in freezing weather in her pajamas. Sheehan’s daughter Jennifer testified that her father abused her mother for years, and after the verdict, stated that even if her mother had to spend some time in prison, “she’s safe…he was going to kill her.” Raymond Sheehan Jr. called his father an abusive monster who would eventually kill their mother.

The prosecution’s focus appears to have been on the fact that Ms. Sheehan never attempted to leave her husband before the shooting, went on family vacations with him, and killed her husband to end a miserable marriage utilizing the battered woman defense to elude prison. The jury deliberated for three days, and at one point, they claimed that they were “hopelessly deadlocked”, leading to the possibility of a mistrial. However, using what is known generically (and more specifically in the federal Courts), as the "Allen charge", the judge instructed the jury to reexamine their opinions and try to reach a unanimous verdict. It is likely that the 9 woman, 3 man jury finally reached a compromise by acquitting on the much more serious murder charges and convicting on the illegal weapons possession charge.

Apparently, the jury was of the opinion that Mr. Sheehan was seriously wounded after the initial five bullets struck him, and was not a threat to her safety when she fired another six bullets from the Glock. However, if Ms. Sheehan’s accounting of events was accepted by the jury, it is hard to fathom how a violent abuser reaching for his Glock would not be a threat to her safety.

Ms. Sheehan could have faced anywhere from 15 years to a maximum of life in prison on the second degree murder charge under Section 125.25 of the Penal Law of the State of New York, which is an A1 felony. On the criminal possession of a weapon charges, she will likely be sentenced to approximately three years in prison. Although she had been free on one million dollars bail, Ms. Sheehan was immediately taken into custody after the verdict. This was somewhat surprising, since having relinquished her passport, she is not a flight risk, she has apparently appeared for all Court appearances, and has ties to the community, including her two children in Queens. Her attorney has indicated his intention to file an appeal of the gun possession charge, and Ms. Sheehan is due back in Court for sentencing on November 10, 2011.

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Former Town of Eastchester Police Officer James Pileggi was convicted of second degree manslaughter by a Westchester County jury on October 5, 2011. Pileggi, 30, was charged in the November 3, 2009 killing of his friend Andre Everett in the driveway of Everett’s residence in New Rochelle, New York. Pileggi, who was off-duty at the time, was apparently trying to show Everett a laser device on his 9 mm Glock 26 when the gun discharged, and Mr. Everett suffered a fatal gunshot wound to the throat. He was pronounced dead at Sound Shore Hospital in New Rochelle.

Pileggi claimed that he believed that the gun was not loaded and that he had inspected the weapon to ensure it was safe. The Westchester D.A. argued to the jury that Mr. Pileggi had disregarded his training in pulling the trigger on a weapon with three other people in close proximity. They further contended that Pileggi showed conscious disregard for the safety of others and was trying to avoid accountability for his recklessness.

Pileggi had been with the Eastchester Police Department for 6 years. Several days after the shooting, he resigned from the department.

The original trial of this case in March of 2011 ended in a hung jury with 10 of the 12 jurors voting for conviction. In a criminal trial, the verdict must be unanimous, whereas in a civil trial for money damages, liability can be established against a defendant with 5 out of 6 jurors in agreement.

Second degree manslaughter under Section 125.15 (1) of the Penal Law of the State of New York is defined as: “recklessly causes the death of another person.” Second degree manslaughter is a Class C felony, with a maximum sentence of 15 years in state prison. After the conviction, Mr. Pileggi’s attorneys had requested that he be allowed to remain free on $50,000 bail, arguing that he had no criminal history and had been early for every Court appearance. However, Judge Barbara Zambelli disregarded this application and ordered that Pileggi be immediately transferred to the Westchester County jail until his sentencing on January 17, 2012.

The judge could sentence Mr. Pileggi to five years probation with time served, but it is likely that Judge Zambelli will sentence Pileggi to some jail time. There is also the likelihood that the family members of Andre Everett will commence a wrongful death suit for compensation against James Pileggi, particularly if Mr. Everett was providing financial support to either a wife, children, or parents. The other viable claim for civil damages would be for the loss of parental guidance if Mr. Everett did have children at the time of his death. However, under New York law, a family member cannot sue for the deceased’s pain and suffering, which claim dies with the death of that person, nor can they make a claim for mental and emotional pain suffered due to the death of a family member.

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