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State v. Marcano

Superior Court of New Jersey, Appellate Division

July 2, 2013

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


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.


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 our consideration:

A. No privilege exists because the law requires Dr. Ma[j]chrzak to report altered New Jersey Prescription Blanks issued to him.
B. No privilege exists because independent evidence exists that proves the defendant used her visit to the doctor to enable her to commit a crime.
C. No privilege exists because the statements made by defendant Marcano were made in an effort to unlawfully procure Percocet.

"A trial court's ruling on the admissibility of evidence is 'subject to limited appellate scrutiny.'" State v. Buckley, __ N.J. __, __(2013) (slip op. at 11) (quoting State v. Buda, 195 N.J. 278, 294 (2008)). Factual "findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal.'" State v. Handy, 206 N.J. 39, 44-45 (2011) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "However, a trial court's legal conclusions are not afforded such deference; appellate review of legal determinations is plenary." Id. at 45.

All privileges are statutory creations which "inhibit[] the search for the truth." Carchidi v. Iavicoli, 412 N.J.Super. 374, 383 (App. Div. 2010). Although necessary because their enforcement advances a societal interest in some circumstances considered more important than "the search for the truth, " State v. Schreiber, 122 N.J. 579, 583 (1991), historically they have been narrowly construed. Id. at 582. And when faced with other competing rights and entitlements, we have found the privilege yields.

In Gabor v. Hyland, 166 N.J.Super. 275 (App. Div. 1979), for example, Medicaid recipients challenged that portion of the application for benefits that gave blanket authorization to their physician or care provider to release "'medical and other information'" to the Department of Human Services. Id. at 276. We concluded that in order to provide for "quality control and fraud detection, " it was reasonable to require waiver of the privilege and authorize disclosure to agencies charged with overseeing the Medicaid program. Id. at 278-79.

The decision in Gabor, like in this case, is driven in part by the fact the physician-patient privilege is one "which the statute itself declines to extend to information which either the physician or patient is required by law to report to a public official." Ibid. Majchrzak was required by law to report the forgery. See N.J.A.C. 13:45A-27.4(d).

A foundational element of the physician-patient privilege is that a "patient" must be "a person who, for the sole purpose of securing preventive, palliative, or curative treatment . . . consults a physician." N.J.R.E. 506(a) (emphasis added). We do not agree defendant is a person who fits within the definition.

That defendant presented a forged prescription for a drug she had been refused is strong circumstantial evidence of the intent, during the office visit, to do something other than solely to "secur[e] preventive, palliative, or curative treatment." Indeed, her conduct suggests that, when she requested the Percocet, she did so not to obtain medical care, but rather, to obtain a controlled dangerous substance. Given the temporal proximity between the office visit and the forged prescription, and defendant's access to a pain management specialist with whom she could have consulted if her need for the drug were genuine, this inference is reasonable.

Additionally, N.J.S.A. 2A:84A-22.5 and N.J.R.E. 506(e) state that "[t]here is no privilege" as to information required to be reported to a public official, such as the doctor's report of a forgery. See N.J.S.A. 45:14-55(b) (practitioners must report stolen prescription blanks within seventy-two hours of discovery); N.J.A.C. 13:45A-27.4(d) (requiring licensed prescribers to report any lost, stolen, or altered prescription blanks). Defendant urges us to hold that the exception allows the doctor to report the forgery but say nothing more, we consider that too narrow a reading of the relevant sections.

Lastly, N.J.R.E. 506(f) provides that there is no privilege where "the services of a physician were sought or obtained to enable or aid anyone . . . to commit a crime." In our view, that statutory section alone makes Marcano's office discussion with the doctor regarding Percocet admissible.

Tools of statutory construction "should not lead to an interpretation that contradicts a common sense understanding of the statutory language." Twp. of Pennsauken v. Schad, 160 N.J. 156, 173 (1999). Rather, we must "use common sense in interpreting statutes and avoid absurd results." Simpkins v. Saiani, 356 N.J.Super. 26, 36 (App. Div. 2002). A common sense interpretation of the statutes delineating the privilege leads to the inescapable conclusion that N.J.S.A. 2C:35-17 means what it says: "Information communicated to a practitioner in an effort unlawfully to obtain or procure the administration of a controlled dangerous substance or controlled substance analog shall not be a privileged communication." (emphasis added). Thus, defendant's conversation with Majchrzak should not have been precluded.


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