No Right to Change Plea Bargain Accepted by Judge
Post 4964
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Defendant Got a Great Plea Deal and Tried to Set it Aside Without Success
Michele Seegars appealed from an order denying her motion for post-conviction relief (PCR) without an evidentiary hearing claiming ineffective assistance of counsel at a plea hearing resulting in her guilty plea to theft of services.
In State Of New Jersey v. Michele A. Seegars, No. A-3721-22, Superior Court of New Jersey, Appellate Division (December 30, 2024) Seegars tried to set aside a judgment rendered as part of a plea agreement to a crime less than the charged insurance fraud.
FACTS
In July 2018, defendant was involved in a two-car motor vehicle accident in Kearny. After the accident, defendant filed a property damage claim against the other driver, who was insured by York Risk Services Group, Inc. York denied responsibility for the accident on the part of its insured. Shortly before the accident occurred, defendant’s automobile insurance coverage provided by Progressive Insurance Company had lapsed. On the day after the accident, defendant contacted Progressive seeking to renew her automobile insurance policy. Defendant falsely represented to Progressive that she had not been involved in any car accidents during the short period of time coverage had lapsed. Progressive determined defendant was involved in the subject accident during the lapse period and advised her by letter that her automobile insurance would not be renewed. Progressive, as required by statute, also referred the matter to the Essex County Prosecutor’s Office for investigation for insurance fraud.
THE CHARGES
Defendant was later charged with third-degree insurance fraud arising from the alleged false information she provided to her auto insurance company. In January 2020 defendant pled guilty pursuant to a plea agreement to a lesser charge of theft of services a disorderly persons offense. The judge accepted the plea and imposed a sentence of one day jail credit and no probation was imposed.
Defendant filed a timely pro se PCR petition. In further support of her PCR application, defendant presented: (1) the two letters she received from York; and (2) an affidavit certifying she informed her trial attorney of her innocence before the plea. Defendant claimed she never had the opportunity to present evidence of her innocence to her trial attorney for review and investigation prior to the plea hearing. She stated she thought her guilty plea was for a “violation,” not a crime.
The State opposed the petition arguing the documents submitted by the defendant were not “exculpatory.” In addition, the State asserted that defendant’s affidavit was in “stark contrast” to her testimony at the plea hearing.
After oral argument, Judge Callahan concluded that defendant failed to present a prima facie case which would require an evidentiary hearing because she failed to raise any genuine issues of fact not already in the record.
ANALYSIS
A defendant is not entitled to an evidentiary hearing if the allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing. The Appellate Division concurred with Judge Callahan’s finding that defendant’s claim of innocence was not based on exculpatory evidence and that no credible evidence exists supporting her position that the fault of the other driver excused her from disclosing the accident in response to the direct question from Progressive asking whether she was in any prior accidents before the date she applied for the policy renewal. The Appellate Division concluded, as the trial judge, that counsel’s failure to consider this evidence was not a mistake that would have impacted the likelihood of success at trial and did not make it less likely that defendant would have entered the guilty plea.
No evidence was presented by defendant that plea counsel affirmatively advised her that the guilty plea would have no effect concerning her future employment prospects. A review of the evidence considered by the trial judge as part of the PCR application revealed the evidence against her was strong and the likelihood that defendant would have been convicted on the original third-degree insurance fraud charge.
Therefore, the judge did not abuse his discretion by failing to hold an evidentiary hearing. Defendant failed to satisfy her burden to present a prima facie case requiring a hearing.
ZALMA OPINION
Every lawyer learns that it is important to be silent after you obtain a favorable ruling from a court. Seegars, facing a trial and with high potential for conviction and five year jail sentence agreed to conviction of a lesser crime, no jail time, no fine and no probation for which her counsel should have received a medal. She still obtained a criminal conviction that made it difficult to work in her profession. She was lucky the appellate division did not set aside the conviction where she could be tried and convicted of insurance fraud and sentenced to five years in jail since she clearly tried to defraud her insurer Progressive.
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Concealing a Weapon Used in a Murder is an Intentional & Criminal Act
Post 5002
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In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.
FACTUAL BACKGROUND
Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...
Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000
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Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.
In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.
The court’s reasoning focused on two main points:
1 whether the ...
Rescission in Michigan Requires Preprocurement Fraud
Post 4999
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Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission
This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).
In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.
The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...
Insurance Fraud Leads to Violent Crime
Post 4990
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CRIMINAL CONDUCT NEVER GETS BETTER
In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.
FACTS
In September 2020, Givens matched with J.C. on the dating app “Tagged.” J.C., who was 20 years old at the time, had known Givens since childhood because their mothers were best friends. After matching, J.C. and Givens saw each other daily, and J.C. began working as a prostitute under Givens’s direction.
Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...
Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989
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Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.
In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.
FACTUAL BACKGROUND
On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...
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To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE
In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.
FACTS
The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not
favorable to the Housens. However, the Housens failed to file a notice of rejection of the arbitration decision within the required 20 days. Instead, they filed a motion for a new trial 29 days after the arbitrator’s decision, citing a clerical error for the delay.
The circuit court ...
