Convicted Merrick doctor wants new trial or plea deal

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Dr. Michael Belfiore, who practiced in Merrick, was convicted in May on 28 federal charges related to his prescribing of opioids — including causing the deaths of two patients. Still in custody pending sentencing, Belfiore filed a motion last week to have the guilty verdict overturned.

He does not, however, intend to plead not guilty and face a second trial.

Instead, Belfiore has asked that federal prosecutors again extend him the plea deal he was offered in 2014, when he was arrested after a joint federal and county investigation of his practice.

If Belfiore had taken the prosecutors’ offer and pleaded guilty to one distribution charge, he could have avoided jail time, or faced no more than 20 years. After he resolved to plead not guilty, however, prosecutors issued a new superseding indictment that also charged him with the deaths of two South Shore men. He now faces at least 20 years in prison, and could be sentenced to life.

Ineffective counsel?

Belfiore blames the outcome of his five-week criminal trial on his attorney at the time, Tom Liotti. According to Belfiore’s new attorney, Bruce Barket, Liotti urged Belfiore not to take the plea deal, and told him that he was sure he could “win” the trial. Liotti de-clined to comment at press time.

Between medical records and undercover videos of Belfiore with patients, “the government’s proof on these counts was absolutely overwhelming,” Barket wrote in recent court papers, adding that there was “virtually no chance of acquittal” on six charges related to the undercover investigation.

“I don’t recall being told that if I turned down the plea and lost at trial, I would be facing counts that carried a sentence range of 20 years to life,” Belfiore said in a sworn affidavit he recently filed from prison. “Had I been told that my chances of prevailing at trial were actually slim, and that the proof against me was overwhelming, I would have certainly taken a plea.”

Psychics and ‘Big Pharma’

Further, according to Barket’s filing, Liotti consulted a psychic during the trial, seeking advice on evidence and addressing the jury. According to Barket’s filing, Liotti called the Des Moines, Iowa-based psychic sometimes twice a day, spending up to 30 minutes on the phone with him. Liotti also billed Belfiore for the psychic consultations, according to Barket.

Barket’s issues with Liotti’s work extend beyond the plea rejection and psychic consultations to his key defense argument, which Liotti tried to connect with a number of high-profile civil cases brought by New York counties against pharmaceutical giant Purdue Pharma.

Liotti strove to paint Belfiore as one of thousands of physician-victims of Purdue — the creator of OxyContin and a leading opioid manufacturer — and the company’s deceptive marketing campaign.

Pre-trial, Liotti shared with the Herald a series of 1990s-era Purdue videos aimed at physicians that explicitly claimed that concerns over opioid addiction were overblown, and that they could safely be prescribed for pain. The rate of addiction for patients being treated using opioid medications is “much less than 1 percent,” a paid doctor said in one of the videos.

“There are literally tens of thousands of victims across this nation where they and their surviving families are not aware of the complicity of the government and Big Pharma in creating these tragic addictions and deaths,” Liotti said in 2017.

Belfiore’s professed ignorance of opioids’ dangers, however, quickly became an issue during the trial, when prosecutors brought up a widely publicized $600 million fine Purdue paid in 2007 for misleading and misrepresenting opioids as non-addictive. The settlement came years before Belfiore started writing thousands of prescriptions to his patients.

Barket called Liotti’s defense strategy “internally inconsistent, and devastatingly used by the prosecution to wholly discredit Dr. Belfiore’s credibility.”

Liotti also missed a chance, according to Barket, to have Belfiore acquitted on at least one of the overdose death charges, by not stressing the different between “actual” and “proximate” cause of death. That is, if opioids prescribed by Belfiore were just an element of a drug cocktail that caused someone’s death, the opioids would likely not be deemed the “actual” cause of death, and the jury’s charging instructions would have been different.

Barket concluded that Liotti’s psychic consultations, “Big Pharma” defense and oversights were “not the conduct of reasonable and constitutionally effective counsel.”

“[Vacating the verdict] in the interest of justice is both warranted and appropriate,” he said.

Standing by his defense

Although Liotti declined to comment on the allegations in Barket’s motion on Tuesday, he said that a statement would be forthcoming.

And, in correspondence with Belfiore after the conviction, Liotti told him, “I believe that I won this case on the law and facts,” and that his defense would hold weight before the Second Circuit Court of Appeals, and possibly the U.S. Supreme Court.

New York State’s recent civil suit against Purdue Pharma could have bolstered Liotti’s post-verdict motions, and, if granted, “would likely also have to result in the restoration of your privileges as a practicing physician,” Liotti said.

He added that Belfiore still owed him for his services.

“Finally, Mike, I have given my all to your case,” Liotti said. “I believe that there is no one in this country who could have provided you with a better defense, especially given the limited resources at my disposal.”

Belfiore was convicted of causing the overdose deaths of John Ubaghs, of Baldwin, and of Edward Martin, of East Rockaway, both in 2013.

A third patient of Belfiore, from Glen Cove, also died of a fentanyl overdose in 2009, days after Belfiore prescribed him the potent, often lethal opioid. The man’s widow, Claudia Marra, told the Herald last year that her husband was addicted to opioids, and Belfiore knew it. She did not press charges against Belfiore, but told her story in a series of Herald reports in summer 2017; her husband’s medical records were also subpoenaed by prosecutors pre-trial.

A fourth patient of Belfiore’s also died of an overdose in 2011. His family filed a wrongful death suit against Belfiore, and won a financial settlement in 2017.