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State v. Felsen

February 16, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STUART FELSEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, No. 03-08-0919.

The opinion of the court was delivered by: Gilroy, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 14, 2005

Before Judges Cuff, Holston, Jr., and Gilroy.

Defendant appeals his convictions of third-degree attempt to obtain Percocet, a controlled dangerous substance (CDS), by fraud, N.J.S.A. 2C:35-13 and 2C:5-1 (Count One); and third-degree forgery, N.J.S.A. 2C:21-1a(2) (Count Two). We are presented with the question, whether evidence of defendant's intent to defraud the State's regulatory program concerning the dispensing of prescription drugs by attempting to pass a forged prescription to a regulated pharmacy, satisfies the statutory requirement that the individual committed the act "with a purpose to defraud or injure" another. N.J.S.A. 2C:21-1a. We answer the question in the affirmative.

Following a jury trial, defendant was convicted on both Counts. Defendant filed a motion for a new trial, Rule 3:20-1, asserting that the State failed to present evidence from which the jury could reasonably have determined that he possessed the requisite mens rea under the forgery statute. The motion was denied on September 15, 2004. On the same date, defendant was sentenced to ninety days incarceration at the Morris County Jail, to be served in the Sheriff's Labor Assistance Program*fn1 (SLAP), and three years probation on the conviction for attempting to obtain a CDS by fraud (Count One). An identical sentence was imposed on Count Two, to run concurrent with the sentence on Count One. Appropriate assessments were also imposed. Defendant appealed. On February 4, 2005, an order was entered in the Law Division staying the sentence pending this appeal. Except to vacate the sentence imposed on Count Two, which should have merged with defendant's conviction on Count One, we affirm.

In January 2002, defendant suffered severe accidental injuries, requiring him to undergo four surgeries between January 2002, and April 2003. Following the surgeries, defendant was prescribed Oxycontin and Percocet, and became addicted to the drugs.

On April 28, 2003, defendant's physician, Dr. Silk, delivered to defendant a completed prescription, to which a blank prescription form was accidentally attached. On the same date, defendant filled in the blank prescription form for ninety 10-mg Percocet pills in the name of a fictitious person, Steven Williams; forged Dr. Silk's signature; and presented the same to a clerk at the Morris Plains Pharmacy. The clerk presented the prescription to the pharmacist who recognized that the signature was forged. The clerk attempted to stall defendant while the police were summoned, but defendant left the store. Approximately five hours later, defendant returned to the pharmacy and was recognized by the clerk. The clerk again attempted to stall defendant, but defendant left the pharmacy a second time. The police arrived and apprehended defendant in his automobile outside the pharmacy. Defendant initially denied attempting to pass the forged prescription, but later admitted to the act. Defendant advised the police he had left the pharmacy because he felt remorseful, knowing that his actions were "illegal" and envisioning the possible impact that his actions could have on his family and employment, not because he thought he "was going to be apprehended or that [the pharmacist] called the police."

On appeal, defendant argues:

POINT I

THE CONVICTION OF FORGERY SHOULD HAVE MERGED INTO THE CONVICTION OF ATTEMPT TO OBTAIN[] A CONTROLLED DANGEROUS SUBSTANCE BY FRAUD. (NOT RAISED BELOW).

POINT II

DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON THE COUNT OF FORGERY OR A NEW TRIAL DUE TO A LACK OF PROOF REGARDING HIS PURPOSE TO DEFRAUD AND LACK OF PROOF REGARDING AN INJURED PARTY.

A. THERE IS NO EVIDENCE EVEN INDICATING THAT DEFENDANT INTENDED TO DEFRAUD OR INJURE ANYONE.

B. THERE IS NO EVIDENCE THAT THERE WAS OR COULD HAVE BEEN AN INJURED PARTY AS A RESULT ...


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