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State v. Marcano

Superior Court of New Jersey, Appellate Division

July 2, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
FRANCES MARCANO, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 19, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-06-0990.

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Peter H. Stoma, Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Gillespie, Gillespie & Jablonski, attorneys for respondent (Jeffrey R. Jablonski, of counsel and on the brief).

Before Judges Alvarez, Waugh and Leone.

PER CURIAM

By leave granted, the State appeals the trial court's September 20, 2012 order limiting the testimony of the State's principal witness. Defendant Frances Marcano is charged with uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3), attempting to obtain a controlled dangerous substance by fraud, N.J.S.A. 2C:5-1 and 2C:35-13, and attempting to obtain prescription legend drugs, N.J.S.A. 2C:5-1 and 2C:35-10.5(d). We now reverse, finding that the physician-patient privilege embodied in N.J.S.A. 2A:84A-22.1 to -22.7 and N.J.R.E. 506 does not bar defendant's doctor from testifying regarding defendant's efforts to obtain a prescription for Percocet during an office visit.

We recount the limited facts gleaned from the transcript of the grand jury proceedings, the only record available to us. Neither the State nor defendant referred to, or provided, a transcript of oral argument or any hearing concerning defendant's motion to bar the doctor's testimony. No certifications appear to have been submitted on the motion which resulted in the order being appealed. We assume that the trial judge decided the matter on written submissions.

On October 26, 2010, Tadeusz Majchrzak, M.D., reported to Jersey City Police that defendant had presented a prescription for Percocet at a drug store where she had been a long-time customer. The pharmacy contacted Majchrzak because staff immediately noticed an irregularity and wanted him to verify that he had written the prescription.

Majchrzak told investigators that he had not prescribed Percocet, the fourth drug on the prescription, to either defendant or Carmen Acevedo, defendant's mother. Acevedo was the patient for whom Majchrzak had prescribed the first three drugs on the prescription pad page. During the course of an office visit a day or two earlier, defendant had asked Majchrzak to prescribe Percocet for her. He refused and referred her to the specialist who was treating her for pain management.[1]

Defendant filed a motion in limine to exclude Majchrzak's testimony about his conversations with defendant regarding the Percocet. Based essentially on these facts, the trial judge granted the motion and limited the doctor's testimony. He found the evidence insufficient to establish that defendant's request for the prescription was "in furtherance of a criminal purpose." The trial judge relied on People v. Sinski, 669 N.E.2d 809 (N.Y. 1996), concluding that New Jersey's narrower interpretation of the physician-patient privilege was of no consequence in this case. Concerned about the potentially chilling effect on doctor and patient communications, and citing the separate and independent statutory duty obligating a physician to report forged prescriptions, the judge decided that the doctor should not "report prior conversations [he] had with [defendant] about medication." Thus he limited Majchrzak's trial testimony only "to the fact that a forgery occurred."

On appeal, the State raises the following points for ...


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