On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-637.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
By leave granted, defendant John G. Costino, D.O., appeals from a portion of a January 4, 2010 Law Division order that denied, with one exception, his motion to suppress the audio recordings of his seven conversations with undercover informants who sought prescriptions for Percocet. In particular, the order in question granted defendant's motion to suppress the audio recordings, transcripts and content of an April 12, 2007 recording, but denied defendant's request to suppress similar covert recordings made on six subsequent occasions. The State cross-appeals from the judge's suppression of the April 12, 2007 intercept, as well as from the judge's further order that at trial the State must refrain from making reference to the April 12, 2007 undercover office visit.
On defendant's appeal, we affirm the denial of his motion to suppress the six intercepted conversations subsequent to April 12, 2007. On the State's cross-appeal, we affirm the suppression of the April 12, 2007 recording; however, we reverse the judge's determination that the State should be barred at trial from presenting testimony describing that office visit.
In September 2005, an agent of the United States Drug Enforcement Administration (DEA) notified the Cape May County Prosecutor's Office (CMCPO) that the DEA had opened an investigation into the over-prescribing of oxycodone (Percocet) by defendant. Thereafter, a DEA agent, acting in concert with Detective George J. Hallett of the CMCPO, interviewed one of defendant's former employees, Cathy Mills, who stated that she had been a patient of defendant before becoming employed at his office. Mills maintained that on her first visit to defendant's North Wildwood office, he gave her Loratab, a prescription pain reliever, without conducting a medical exam and based solely on her self-report of discomfort. Mills also reported that: patients were routinely instructed by defendant to come to a side door of the office where they would pay seventy-five dollars in cash and receive a refill of their medication without a physical exam being performed; defendant frequently wrote prescriptions for pain medication without examining the patient; and after she became an employee in defendant's office, he instructed her to bill insurance companies for physical therapy services, even though those services had not been provided.
The CMCPO investigation also included an undercover investigation conducted by two detectives in the Prosecutor's Office, who sent an undercover investigator from their office, Joseph Landis, to defendant's office on December 12, 2005, in an "attempt to obtain a fraudulent prescription for pain pills" from defendant. Defendant declined to prescribe pain medication to Landis.
The investigation later widened to include representatives of the United States Postal Inspector's Office and the Little Egg Harbor Police Department. On January 24, 2007, DEA, the Postal Inspector's Office, the CMCPO and the Little Egg Harbor Police Department met to discuss their investigation of defendant's distribution of Percocet.
Some eight months earlier, the Little Egg Harbor Police Department had appointed Tonya Anderson as a Class Two Special Law Enforcement Officer pursuant to N.J.S.A. 40A:14-146.10 and 146.11(a)(2). At the time, she had already completed her police academy training and was within two months of her permanent appointment as a police officer. On April 12, 2007, at the behest of DEA and the CMCPO, Anderson, working undercover, entered defendant's office with a recording device hidden in her purse. During the fifteen-minute office visit, Anderson told defendant she was an exotic dancer and had no pain, but wanted something that would help her relax. She told defendant that one of his former patients, whom she did not name, had given her some of the Percocet tablets defendant had prescribed and that the Percocet had helped her relax. She said she was hoping defendant would give her the same prescription.
Defendant took a history from Anderson and, other than listening to Anderson's heart with a stethoscope, conducted no physical examination. At the end of the April 12, 2007 visit, defendant provided Anderson a prescription for thirty 7.5 milligram Percocet tablets. After leaving defendant's office, Anderson immediately met with representatives of the CMCPO and DEA and turned over the Percocet prescription defendant had issued moments earlier.
On April 17, 2007, Hallett prepared a request for a consensual intercept authorization pursuant to N.J.S.A. 2A:156A-4(c), which he submitted for approval to the Cape May County Prosecutor, Robert L. Taylor. Hallett's certification described the joint DEA/CMCPO investigation that had begun in September 2005, including the information provided by Mills. Hallett's April 17, 2007 certification concluded with the following discussion of Anderson's participation:
Based on the investigation to date, Tonya Anderson, who is a source of information and acting as an agent for the Cape May County Prosecutor's Office, expressed a willingness to assist with our investigation of Dr. Costino by acting as a patient. A health insurance card was obtained from Blue Cross/Blue Shield with a fraudulent name in order that we can determine what Dr. Costino bills the insurance company. It is believed that Dr. Costino is writing prescriptions without examining patients and may in fact be billing insurance companies for services not rendered. This is a joint investigation between DEA, Postal Inspectors and this office.
The next day, April 18, 2007, Prosecutor Taylor approved the request for authorization to prospectively conduct interceptions.
On May 2, 2007, Anderson again visited defendant's office. As on April 12, she complained of no soreness or discomfort, stating the medication was "more [for] the relaxation." Defendant told her to continue taking the Percocet.
On May 24, 2007, the Little Egg Harbor Police Department appointed Anderson as a permanent, full-time police officer. In an undercover capacity, she visited defendant's office on five subsequent occasions, June 7, June 26, July 13, August 3, and August 23, 2007. On June 7, defendant increased the prescription to ten milligrams of Percocet, after again conducting a physical examination limited to listening to Anderson's chest sounds.
During her June 26, 2007 visit, Anderson complained that the ten milligram prescription defendant had prescribed during her June 7, 2007 visit was working no better than the 7.5 milligram prescription he had issued on April 12. She commented that "they just seem to . . . just wear off too soon," to which defendant responded, "you become a little tolerant." Defendant did not conduct a physical examination of Anderson, or advise her to discontinue taking the Percocet.
Anderson's July 13, 2007 visit to Costino's office likewise included no complaints of pain from Anderson. Defendant conducted no physical examination but warned Anderson to "[b]e careful with the medicine."
By the time of Anderson's next visit on August 3, 2007, the CMCPO had asked DEA Special Agent Margarita Abbattiscianni to accompany Anderson to defendant's office and provided Abbattiscianni with a hidden tape recorder. Like Anderson, Abbattiscianni claimed to be an exotic dancer, stating "it's just the same as Tonya here it's just I'm up all night and I just need something to bring me down a little bit during the day." As with Anderson, the physical examination defendant conducted consisted only of listening to Abbattiscianni's chest sounds with a stethoscope. In response to defendant's statement that "you're basically just ...