Lynch, Larner and Horn. The opinion of the court was delivered by Larner, J.A.D.
Defendant, a practicing licensed physician, was convicted on six counts of dispensing and selling controlled dangerous substances to named individuals (N.J.S.A. 24:21-19), one count of failure to keep records and maintain inventories of controlled dangerous substances (N.J.S.A. 24:21-13), and one count of knowingly maintaining premises resorted to by persons using controlled dangerous substances (N.J.S.A. 24:21-21(a) (6)). The trial judge imposed suspended consecutive State Prison sentences of 3-5 years on each count plus fines totalling $40,000.
In general, the theory of the State's case and the jury's finding of guilt were bottomed upon the charge that defendant
dispensed and sold controlled dangerous substances over a considerable period of time directly to six alleged patients under circumstances which established that he did not do so in good faith in the course of his professional practice.*fn1
The count on the failure to keep records and maintain inventories of controlled dangerous substances was founded on testimony of a pharmacist employed by the Division of Narcotic Drug Abuse Control. He testified as to an audit of defendant's records which revealed that a portion of the requisite records did not exist, while those records which were available showed substantial unexplained discrepancies.
It is manifest that the evidence of guilt was compelling beyond a reasonable doubt. And since defendant does not contest the propriety of the jury verdict in that respect, it is not essential to summarize the evidential facts presented by the extensive trial transcript except as they may become significant in the evaluation of appellant's assignments of error.
Defendant urges for the first time on appeal that a licensed and registered physician is beyond the reach of the criminal penalties of N.J.S.A. 24:21-19, and that, in the alternative, the good faith standard of N.J.S.A. 24:21-15 is unconstitutionally vague. In some inexplicable way he associates this contention, which was never projected at trial, with the judge's charge.
On the first alternative position he urges that a licensed physician who has been registered as a dispenser of drugs is totally exempt from the criminal sanctions of the statute. Such a contention is wholly without merit.
A physician's license and registration authorizes him to dispense controlled dangerous substances, but the statute makes it clear that he is immune from criminal liability when he dispenses the same "in good faith * * * in the course of his professional practice only." If he engages in dispensing or selling such drugs beyond the necessities of the good faith practice of his profession, he is no less a "pusher" of drugs -- a criminal -- than a layman unadorned by the trappings of a license or registration. See United States v. Moore , 423 U.S. 77, 96 S. Ct. 310, 46 L. Ed. 2d 219 (1975), for cases involving analogous federal statute.
Defendant further asserts that simply because one section of the statute dealing with the exemption of medical practitioners who dispense the prohibited drugs directly in good faith in the course of their professional practices only (N.J.S.A. 24:21-15) does not contain a reference to criminal penalties for its violation, he cannot be held criminally liable for dispensing in bad faith. Apparently, he believes that the inclusion of the criminal penalties in a separate section (N.J.S.A. 24-21-19) absolves him from criminal responsibility for violation of the act. This argument is patently frivolous and requires no discussion. R. 2:11-3(e) (2).
Equally frivolous is the assertion that the statutory standard of good faith made applicable to exempt physicians who dispense controlled dangerous ...