The amount of money that former Bergen resident and convicted felon Michele Ann Case will have to repay her former employer is still unresolved following a hearing in Genesee County Court on Thursday. The hearing is to be continued at 4 o'clock, Monday, Nov. 5.
The registered nurse, found guilty by a jury of third-degree grand larceny in March, supposedly took $14,650 from her former employer. That's the amount HomeCare & Hospice maintains it paid Case based on inflated mileage records and fraudulent "call in" claims she submitted between January 2009 through January 2011.
In addition, the company is seeking reimbursement for $7,000 it says it spent to investigate Case.
But claiming it and proving it to Judge Robert C. Noonan are two different matters entirely.
Under state law, a person convicted of third-degree grand larceny, a Class D felony, must pay restitution of $3,000 or more -- but it cannot exceed $50,000.
So, she'll have to pay at least $3,000 but any amount over that is something the judge must decide based on the proof provided.
He set an attorneys' conference on Oct. 11 wherein Public Defender Gary Horton and District Attorney Lawrence Friedman will update the judge on the status of evidence to be culled from trial transcripts and affidavits, testimonials or other sources to pin down how much money Case will be required to repay.
The transcripts are completed but they need proofreading before they can be released. The transcripts are also necessary because Case is appealing her conviction. She was sentenced to four months of intermittant jail time and five years probation.
On Thursday afternoon, Horton called four of the six witnesses present to testify. In his low-key style, leaning on the corner of the defendant's table with his right hand in his pocket, he questioned the women about their investigation of Michele Case.
Deborah Browne, the company's nursing services manager who works at the Warsaw office, testified that she pored over paper charts to verify Case's documentation of her nursing visits for the period of April through September 2011 logged to the Warsaw office.
Browne said she met with the human resources director and reviewed the information with her. When paper files were missing information, she attempted to find the information in the company's electronic database. She said they were in the process of transferring paper files into electronic databases.
Horton asked her to estimate how many paper files she reviewed. She indicated with her hands that she reviewed a rectangular box about three and a half feet long, and said it was full of about 40 to 45 files that documented nursing visits. Of those, she thinks "30 to 40" visits were questionable, but said she couldn't remember and that she couldn't always backtrack through the labyrinth and locate the patient.
She checked the paper cargo on several occasions but did not keep track of her time while specifically performing this task.
The 56 hours she swore to spending on her investigation in a signed affidavit were an estimate, she said, adding that the work also included meetings, phone calls, etc.
Friedman objected, and questioned the testimony's relevancy.
"I'm trying to ascertain the bulk of the work for those hours," Horton said.
Noonan overruled the objection.
"Did you prepare any written report of your findings?" Horton asked.
Browne said she made notes and passed them along to her supervisor. They were maybe a page long and took her 15 to 30 minutes to write, but she didn't keep track of her memo-writing time.
Altogether, she figures she spent "at least 59 hours" on the Case work.
On cross examination, Friedman seized on the inconsistency of her time estimates -- in the affidavit, she swore to 56 hours, now she says it was 59 hours or more.
Either way, Horton countered, they are both simply estimates.
Kathleen Miller, the director of clinical services, testified that "we had so many visits where we could not find the patient. ... That was quite an expensive search -- matching the patients with the visits."
When asked if she could quantify the number of patients or visits or the time spent matching them up, Miller replied "I can't tell you that, sir."
Miller said she reviewed the paper files of mileage claims for the Olean, Batavia and Warsaw offices. But to determine where Michele went, they had to access the patients' electronic records.
"How often did you have to do that?" Horton asked.
"I can't say -- hours," Miller said, adding that if she needed to travel, say, from Olean to Batavia to investigate, it could turn into "a 10-hour day."
Under Horton's questioning, Miller went on to testify that she did not put her findings in writing. If a visit couldn't be documented, there was no note made of the fact. She said she did not keep track of time she spent investigating; and that all throughout she was doing other tasks as needed.
Horton asked her if Browne had sent her a memo about the investigation, which Browne earlier testified to doing.
"I'm not sure, that was months ago," Miller said.
"Do you think you have anything like that (memo) in your possession?" Horton asked.
"I find it unlikely," Miller said.
Jodi Miller, an executive assistant for HomeCare & Hospice, testified that she was asked to help prepare for the lawsuit by searching MapQuest for mileage determinations, sending emails, faxes, setting up meetings, etc.
"How many MapQuest mileage determinations do you think you made?" Horton asked.
"I can't say," Jodi Miller said. "Weeks of my time was taken up with this."
Her affidavit specified 78 hours and she said that was an estimation because she did not make note of the time she spent on her lawsuit-related work.
Well, then, how did you arrive at the estimate of 78 hours? Horton inquired.
"One week (my supervisor) was gone all week and I spent that time (on the case) and then a couple of days before that," the executive assistant said.
At one point, Horton asked her if she recalled making copies of documentation for the former human services director and she did indeed.
"How many copies did you make?" Horton asked.
"I have no idea," she said.
The last witness to take the stand was an eight-year employee of the company, Kimberly Childs, an administrative specialist.
She testified that her boss asked her to verify Michele Case's nursing visits.
"How many?" Horton asked.
"There were a lot," Childs said, adding that she figures she spent two hours a day, three times a week on the task for a month.
But Horton noted that the company's CEO had indicated in the court record that Childs put in 14 hours.
"(The CEO) probably wasn't aware of how much I was working on it," Childs said.
After the witnesses' testimony, Friedman asked that the mileage and staff time spent by the employees of HomeCare & Hospice to come and testify Thursday be documented and put into the court record.
Horton told Judge Noonan that he saw no reason to include that in the record.
"Make a claim. We can hash it out like everything else," Noonan said.
Then Friedman asked the judge to allow him to question the defendant about her income and household expenses. They are relevant because they will be used to determine her monthly restitution payment, which is set to start Oct. 1.
Friedman said she provided handwritten notes about what she purports to be her income and her estimated household expenses but hasn't testified about them under oath.
Case took the stand and testified that she now lives with her mother and two children in Attica and pays no rent. Her home is in foreclosure. She has two jobs -- one at an abrasive products company in Lockport and one cleaning offices in Akron. During her trial, it was noted that she also receives $600 a month in child support.
She estimates that beginning Oct. 1, she will begin paying $550 a month rent for an apartment in Attica.
But under questioning by Friedman, she acknowleged that she does not have a lease signed and has not talked to the prospective Brooklyn Street landlord. She said her mother has spoken to him, but she doesn't know his name.
The DA questioned her $261-a-month car insurance payment and she said it was high because she had wrecked, "totaled," two vehicles within a 21-day period. Plus, she has monthly payments on a five-year loan for her current vehicle which she took out in January.
Laundry costs were also included in her household expenses.
"You mean your mother doesn't have a washing machine?" Friedman asked.
Case explained that, yes, her mother has a washing machine, but her estimate was based on her previous use of a laundromat, which she'll resume using once she's in the apartment she plans to rent.
She also based a claim of $175 a month for electricity on the amount she said she had been paying at her house that's in foreclosure.
"Nearly half the expenses she claims are for an apartment she doesn't have, owned by a landlord she's never met," Friedman subsequently told the judge, noting that it is all very "speculative."
The judge agreed and ordered Case to bring proof of employment when she returns for the conclusion of the hearing in November. Plus, he ordered her to make a lump sum restitution payment of $500, which is handled by the probation department, and provide proof of it.
Regarding her ongoing restitution payments, Noonan reminded counsel that the amount of the payments can be modified, but no additional victims can be added after restitution is set.
Thus, HomeCare & Hospice's insurer would need to be added as a claimant so Case can be required to pay the $1,000 deductible on HomeCare & Hospice's policy, which covered its losses.
