On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-04-0069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges A.A. Rodriguez, Grall and LeWinn.
Defendant Paola D'Ottavio, a pharmacist formerly licensed by the State of New Jersey and employed by CVS, was involved in a scheme to deliver and distribute a prescription drug, Hydrocodone, by fabricating "phone-in" prescriptions between January 2, 2004 and June 5, 2005. A jury found defendant guilty of second-degree health care claims fraud, N.J.S.A. 2C:21-4.3; third-degree Medicaid fraud, N.J.S.A. 30:4D-17b(1); and third-degree distribution of a controlled dangerous substance, Hydrocodone, without a valid prescription, N.J.S.A. 2C:35-5b(13). Following the verdict but prior to sentencing, defendant consented to the revocation of her license by the State Board of Pharmacy.
Defendant was sentenced as follows. The judge merged her conviction for third-degree Medicaid fraud with her conviction for second-degree health care claims fraud.*fn1 The judge concluded that the presumption of imprisonment applicable to a sentence for a second-degree crime was not overcome, N.J.S.A. 2C:44-1d, and that the relative weight of the mitigating and aggravating factors did not warrant a sentence for second-degree health care claims fraud in the third-degree range, N.J.S.A. 2C:44-1f(2). Accordingly, the judge imposed the minimum term of imprisonment, five years, for a second-degree crime. N.J.S.A. 2C:43-6a(2). In addition, the judge sentenced defendant to a consecutive minimum term for third-degree distribution, imposed the requisite fines, penalties, assessments, fees and driver's license suspension and ordered defendant to make restitution.
The persons who received the Hydrocodone dispensed without valid prescriptions were Terry Gatto, defendant's manicurist, and Vicky Guld, defendant's hair dresser. Their doctors had not prescribed Hydrocodone for them, and the members of their respective staffs who were identified as phoning-in the prescriptions to CVS denied placing the calls. Defendant frequently telephoned both Gatto and Guld between January 2004 and June 2005. Gatto sold the pills she received in individual transactions and shared the proceeds with defendant. Guld, who was addicted, used most of it herself and sold only a few pills.
Defendant obtained her pharmacist license in 1996 and went to work for CVS in Smithville. Thereafter, she was transferred to a CVS in Northfield and was the pharmacist in charge at that location for nine years. In February 2005, she transferred to a CVS in Egg Harbor, where she also served as the pharmacist in charge. Both Gatto and Guld transferred their prescriptions from the CVS in Northfield to the CVS in Egg Harbor when defendant was transferred to that store. The fabricated prescriptions in the names of either Gatto or Guld were electronically billed to Caremark/Avance PCS when the information was entered into the CVS computer system.
The scheme also involved fabricated prescriptions for Hydrocodone in the names of other CVS customers. Those prescriptions were billed to either private insurers, private pharmacy benefit programs or Medicaid, depending upon the individual customer's prescription benefits. Those customers and their doctors testified and denied, respectively, prescribing and receiving the drugs. The State had evidence that defendant diverted the drugs to Guld by placing them inside a bag containing Hydrocodone purportedly prescribed for her.
Two methods were employed to complete the fabricated "phone-in" prescriptions that made Hydrocodone available to Gatto and Guld. We discuss them in the two paragraphs that follow.
First, there were prescriptions purportedly "phoned-in" from doctors' offices, which were handwritten by defendant on prescription forms kept at CVS. Expert testimony was offered to establish that defendant handwrote those prescriptions; co-workers identified her handwriting; and defendant did not dispute that testimony. One prescription was partially in defendant's handwriting and partially in the handwriting of another person.
Second, there were forms prepared for purported "phone-in" prescriptions that included no handwriting other than the date. They were completed by fixing a computer-generated prescription label to a prescription form that was otherwise blank, except for the handwritten date. On those forms, defendant's initials "P.D." were printed on the computer-generated labels. There was evidence that any pharmacist or technician working in that pharmacy could have entered defendant's initials into the computer system and printed the labels, and defendant stressed that point during her testimony. Nonetheless, there was also evidence linking defendant's handwriting to the handwritten dates on some of those prescription forms. Although defendant denied any involvement with prescription forms completed by attaching a computer-generated label, she did not testify about the handwritten dates that appeared on the prescription blanks.
On appeal defendant raises the following issues in her main brief:
I. THE TRIAL COURT ERRED WHEN IT GAVE A THIRD ANSWER TO THE QUESTION RAISED BY THE ...