STATE OF NEW JERSEY v. JOHN G. COSTINO, D.O.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2761-09T42761-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

JOHN G. COSTINO, D.O.,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

 

Argued August 10, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-637.

Glenn A. Zeitz argued the cause for appellant/cross-respondent (Glenn A. Zeitz, attorney; Jordan G. Zeitz, on the briefs).

J. Vincent Molitor, Assistant Prosecutor, argued the cause for respondent/cross-appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).

PER CURIAM

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.

I.

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 as normal as normal can be," Abbattiscianni responded "yes. Very normal." At the conclusion of the visit, defendant provided her with a prescription for Percocet.

Anderson's and Abbattiscianni's last visit to defendant's office occurred on August 23, 2007, at which time, without examining Anderson or asking her to describe any problems she was having, defendant renewed her prescription for Percocet and increased the dosage to two tablets per day. After each of her seven visits to defendant's office, Anderson refreshed her recollection by listening to the covert recordings and prepared a detailed investigation report that described her conversation with defendant and the extent of any physical examination he conducted. Abbattiscianni did the same.

In August 2008, a Cape May County Grand Jury returned a twenty-six count indictment against defendant, charging him with unlawful distribution of a controlled dangerous substance (Percocet), distribution of CDS within 1,000 feet of school property and healthcare fraud. Defendant thereafter filed the motion to suppress that is the subject of this appeal. Prior to the motion hearing, the parties presented the judge with transcripts of the proceedings before the Office of Administrative Law (OAL), which had conducted hearings on the license revocation proceedings instituted by the Board of Medical Examiners. The judge also considered the Prosecutor's April 18, 2007 written approval for the six consensual intercepts. At the conclusion of the July 29, 2009 motion hearing, the judge granted defendant's motion to suppress the tape recordings of all seven visits and barred the State from eliciting at trial any testimony of defendant's conversations with Anderson and Abbattiscianni.

As to Anderson's initial April 12, 2007 office visit, the judge reasoned that because Anderson was only a Class Two Special Law Enforcement Officer, she could not satisfy N.J.S.A. 2A:156A-4(b), which permits consensual intercepts of conversations initiated by police officers -- without the advance approval of the Prosecutor -- when the police officer is a party to the conversation. The judge further reasoned that because the Prosecutor had not authorized the interception of Anderson's conversations with defendant until six days after the April 12, 2007 intercept had occurred, a provision of N.J.S.A. 2A:156A-4(c), which authorizes a Prosecutor to approve consensual intercepts by police informants, could not be used to authorize the intercept that had occurred six days earlier. For those reasons, the judge suppressed the tape recording of Anderson's April 12, 2007 office visit. The judge likewise suppressed the tape recordings of Anderson's next six visits, reasoning that those recordings were the fruit of the unlawfully obtained intercept of the April 12, 2007 oral communication between Anderson and defendant.

Although the precise date is not clear from the record, the State moved for reconsideration of the judge's July 29, 2009 order. By the time the State's motion was heard on September 24, 2009, Prosecutor Taylor had provided a certification dated August 6, 2009. In that certification, the Prosecutor explained that prior to Anderson's first undercover visit on April 12, 2007, he was already familiar with the ongoing joint investigation by DEA, the United States Postal Service and his office. He certified that "[p]rior to the first undercover visit of April 12, 2007, [he] gave verbal approval for an undercover operation at defendant's office involving undercover individuals who are going to be both posing as patients and wearing recording devices."

Oral argument on the State's motion for reconsideration resumed on October 22, 2009. At the conclusion of the lengthy hearing, the judge refused to reconsider his suppression of the April 12, 2007 intercept. He also barred the State from introducing testimony at trial describing the conversation between defendant and Anderson that occurred during the April 12, 2007 undercover visit. The judge recognized that even though such testimony would be "otherwise admissible" under N.J.R.E. 803(b)(1) as a statement of defendant, permitting Anderson to testify to her recollection of the April 12, 2007 conversation with defendant "would place defense counsel in the due process dilemma of either opening the evidential door to the content of the transcript through cross-examination or otherwise ignoring any inconsistencies between that undercover's testimony and the content of that transcript." The judge characterized such dilemma as "a Hobson's choice in either event." For that reason, the judge suppressed not only the recording of the April 12, 2007 undercover visit, but also any testimony describing it.

The judge did, however, reconsider the suppression of the six subsequent undercover visits. The judge held that the undercover visit of April 12, 2007 "was not the beginning of the investigation," but was instead part of an ongoing investigation that had been developed "over a period of time" by a number of state and federal law enforcement agencies. The judge concluded that the "return trips" of May 2, June 7, June 26, July 13, August 3 and August 23, 2007 "do not derive from the unlawful or procedurally defective intercept" of April 12, 2007. For that reason, the judge held that his July 29, 2009 order to the contrary should be reconsidered and the State would be permitted to introduce at trial evidence of the last six undercover visits and the consensual intercepts produced during those visits.

Defendant filed a motion for reconsideration of the order that resulted from the October 22, 2009 hearing. At the conclusion of the December 14, 2009 hearing on defendant's motion for reconsideration, the judge denied the motion, reasoning that defendant had presented nothing warranting modification of the ruling issued on October 22, 2009. The judge signed a confirming order on January 4, 2010, which, as we have already noted, suppressed the April 12, 2007 intercept and barred the State from eliciting any testimony describing the conversation between Anderson and the defendant on that date, but permitted the State to introduce the recordings of the next six undercover visits.

On appeal, defendant argues:

I. IT WAS (AND IS) IMPROPER FOR THE LOWER COURT TO FIND UNDER THE NEW JERSEY WIRETAP STATUTE (N.J.S.A. 2A:156A-1, ET. SEQ.) AND STATE V. WORTHY, 141 N.J. 368 (1995) THAT THE ORAL COMMUNICATIONS INTERCEPTED ON MAY 2, 2007 AND THEREAFTER WERE (AND ARE) NOT SUBJECT TO SUPPRESSION AS "DERIVATIVE EVIDENCE" WHEN THE ONLY INTERVENING EVENT BETWEEN THE FIRST (APRIL 12, 2007) INTERCEPTED ORAL COMMUNICATION AND THE SECOND (MAY 2, 2007) INTERCEPTED ORAL COMMUNICATION WAS THE WRITTEN AUTHORIZATION PROVIDED BY THE COUNTY PROSECUTOR ON APRIL 18, 2007.

The State frames its arguments on its cross-appeal as follows:

I. THIS COURT SHOULD REVERSE THE LAW DIVISION'S DECISION THAT THE STATE OF NEW JERSEY VIOLATED THE NEW JERSEY WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT ON APRIL 12, 2007.

A. Anderson was an investigative or law enforcement officer.

B. The was no need for written approval.

II. THIS COURT SHOULD REVERSE THE LAW DIVISION'S DECISION TO PROHIBIT ANDERSON FROM TESTIFYING ABOUT THE CONTENT OF HER CONVERSATION WITH DEFENDANT ON APRIL 12, 2007.

III. THIS COURT SHOULD AFFIRM THE LAW DIVISION'S DECISION TO DENY DEFENDANT'S MOTION TO SUPPRESS THE RECORDINGS OF THE VISITS TO DEFENDANT'S OFFICE SUBSEQUENT TO APRIL 12, 2007.

II.

The New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34 (the Act), generally makes it unlawful for any party to "intercept . . . any wire, electronic or oral communication[.]" N.J.S.A. 2A:156A-3(a). The Act defines "intercept" as "the aural . . . acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device[.]" N.J.S.A. 2A:156A-2(c) (emphasis added).

The Act specifies the circumstances under which a conversation may be intercepted. In relevant part, N.J.S.A. 2A:156A-4 specifies that it shall not be unlawful under the Act for

b. Any investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such officer is a party to the communication or where another officer who is a party to the communication requests or requires him to make interception;

c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made without the prior approval of the Attorney General or his designee or a county prosecutor or his designee[.]

Thus, the Act authorizes a law enforcement officer who is a party to a conversation to intercept it without obtaining the prior approval of the Attorney General or the county prosecutor; however, when law enforcement requests a person who is not a police officer to record a conversation in which such person is a participant, such interception is not lawful unless prior approval of the Attorney General or a county prosecutor has been obtained.

The Act further provides that if a person subjected to an interception of an oral communication establishes that such interception was unlawful, "the entire contents of all intercepted wire, electronic or oral communications obtained during or after any interception[,] . . . or evidence derived therefrom, shall not be received in evidence in the trial, hearing or proceeding." N.J.S.A. 2A:156A-21 (emphasis added). Nonetheless, as the Court observed in State v. Worthy, 141 N.J. 368, 389 (1995), not every violation of the Act will result in suppression of evidence. If prosecutors can point to an "independent intervening event" that is "sufficient to contain the taint of the [original] unlawful evidence," the State is permitted to argue that the violation of the Act should be disregarded. Ibid.

III.

Rather than begin our analysis with defendant's challenge to the denial of his motion to suppress the intercepts made during the last six undercover visits, we turn first to the State's cross-appeal of the judge's suppression of the April 12, 2007 intercept, as the events and the legal analysis surrounding the April 12, 2007 intercept place defendant's arguments regarding the next six visits in proper context. The State argues that the judge erred when he suppressed the transcript and recording of the consensual intercept on April 12, 2007 because: 1) nothing in N.J.S.A 2A:156A-4 supports the distinction the Law Division made between a Class Two Special Law Enforcement Officer, such as Anderson, and a permanently appointed "full-time police officer"; and 2) the Prosecutor's verbal approval of the interception -- as described in his August 6, 2009 certification -- was sufficient because written approval is required only when the police are not a party to the communication and lack consent from either of the parties to record it.

Defendant argues that the judge was correct when he determined that as a Class Two officer, Anderson was not an "investigative or law enforcement officer" as defined by N.J.S.A. 2A:156A-2(f) and was therefore not covered by N.J.S.A. 2A:156A-4(b), which authorizes police to intercept a conversation to which an officer is a party without obtaining the prior approval of a Prosecutor or the Attorney General. In particular, defendant maintains that: 1) Anderson had been a Special Law Enforcement Officer for a period exceeding one year, thereby violating N.J.S.A. 40A:14-146.14(a), which limits such appointments to one year; 2) Anderson was employed by Little Egg Harbor but assigned by the CMCPO to investigate defendant in North Wildwood, thereby violating N.J.S.A. 40A:14-146.14(c), which prohibits Special Law Enforcement Officers from performing any duties outside the municipality that employs them except when in fresh pursuit or when performing duties in another municipality pursuant to a duly-authorized mutual aid agreement, neither of which was applicable here; and 3) the Little Egg Harbor Police Department employed more than two Special Law Enforcement Officers during the relevant period, in violation of N.J.S.A. 40A:14-146.17, which sets a limit of two.

The State does not squarely address defendant's statutory arguments concerning the territorial, durational or numerical limitations applicable to Special Law Enforcement Officers that we have just described, other than to point out that regularly-appointed, permanent police officers are subject to the same territorial limitations that are imposed on Class One and Two Special Law Enforcement Officers by N.J.S.A. 40A:14-146.14(c). Instead, the State relies upon two other statutes to support its claim that at the time of the April 12, 2007 intercept, Anderson qualified as an "investigative or law enforcement officer" and was therefore authorized by N.J.S.A. 2A:156A-4(b) to intercept an oral conversation to which she was a party without obtaining the approval of the Prosecutor. The first of those two statutes is N.J.S.A. 2A:156A-2(f), which defines an "[i]nvestigative or law enforcement officer" as:

any officer . . . who is empowered by law to conduct investigations of, or to make arrests for, any offense enumerated in section 8 [of this act N.J.S.A. 2A:156A-8] . . . .

The State maintains that contrary to the findings of the Law Division, nothing in the language of N.J.S.A. 2A:156A-2(f) excludes a Class Two Special Law Enforcement Officer from its reach and that the only limitation contained in the statute is the requirement that the officer in question be "empowered . . . to conduct investigations" or "make arrests" for any of the crimes set forth in N.J.S.A. 2A:156A-8. The State argues that Anderson is so empowered, which brings us to the second statute upon which the State relies, N.J.S.A. 40A:14-146.11(a)(2), which describes the powers conferred upon Class Two Special Law Enforcement Officers such as Anderson:

Class Two. Officers of this class shall be authorized to exercise full powers and duties similar to those of a permanent, regularly appointed full-time police officer. The use of a firearm by an officer of this class may be authorized only after the officer has been fully certified as successfully completing training as prescribed by the [Police Training C]ommission.

[Emphasis added.]

Thus, at the time Anderson, as a Class Two Special Law Enforcement Officer, recorded her conversation with defendant on April 12, 2007, she was authorized by statute to exercise the same "powers and duties" that a "permanent, regularly appointed" police officer could perform, ibid., provided that her appointment satisfied the other requirements of the Special Law Enforcement Officer statutes, including N.J.S.A. 40A:14-146.14(a), (b) and (c), which limit the appointment of such officers to a period of one year and prohibit them -- with two exceptions not relevant here -- from serving outside the territorial limits of the municipality that employs them. The statute provides in relevant part:

a. Special law enforcement officers may be appointed for terms not to exceed one year . . . .

b. . . . A special law enforcement officer shall be deemed to be on duty only while he is performing the public safety functions on behalf of the local unit pursuant to this act . . . .

. . . .

c. A special law enforcement officer shall be under the supervision and direction of the chief of police . . . and shall perform his duties only in the local unit except when in fresh pursuit of any person . . . or when authorized to perform duties in another unit pursuant to a mutual aid agreement [for emergency services] enacted in accordance with section 1 of P.L. 1976, c. 45 [N.J.S.A. 40A:14-156.1].

[N.J.S.A. 40A:14-146.14 (a),(b) and (c).]

Thus, Anderson's appointment exceeded both the durational and territorial limits set by statute, because she was employed for a period exceeding one year and was working outside the territorial limits of Little Egg Harbor in the absence of a fresh pursuit or a duly-adopted emergency mutual aid agreement between Little Egg Harbor and another municipality. Thus, although Class Two Special Law Enforcement Officers are authorized by N.J.S.A. 40A:14-146.11(a)(2) to perform all of the duties of a full-time police officer, which would include the investigation of fraudulent prescriptions of Percocet, Anderson could not so qualify because she was functioning in a capacity that violated the durational and territorial limits established by statute. For that reason, we concur in the judge's determination that Anderson's interception of her April 12, 2007 conversation with defendant could not qualify for the "law enforcement" provision of the Act, namely N.J.S.A. 2A:156A-4(b).

The State next argues that even if the judge was correct when he concluded that Anderson could not so qualify on April 12, 2007, the judge nonetheless erred when he concluded that subsection (c) of N.J.S.A. 2A:156A-4 required the written approval of the Prosecutor. The distinction between an oral and written approval becomes significant because Prosecutor Taylor did not issue written approval for Anderson's interceptions of her conversations with defendant until April 18, 2007, six days after the interception in question. Thus, if a written approval was required, the approval issued on April 18, 2007 could not serve to authorize the April 12, 2007 intercept.

Contrary to the judge's insistence that such approval be in writing, nothing in the language of N.J.S.A. 2A:156A-4(c) imposes such a requirement. We therefore part company with the judge's determination that written approval was required. The judge also determined that even if verbal approval was adequate, he was not satisfied that such verbal approval had been issued prior to the April 12, 2007 intercept. The judge reasoned that Prosecutor Taylor's August 6, 2009 certification attesting to his advance approval of the April 12, 2007 intercept was not executed until after the judge had already deemed the April 12, 2007 intercept invalid at the July 29, 2009 hearing. For that reason, the judge determined that such certification was not reliable. We will not second-guess that determination. State v. Johnson, 42 N.J. 146, 162 (1964) (requiring appellate courts to accept a trial judge's findings of fact unless those findings are "clearly . . . mistaken"). In the absence of clear evidence of a prior approval of Anderson's April 12, 2007 intercept, the judge properly suppressed the recording and the transcript of Anderson's undercover conversation with defendant. We thus affirm that portion of the January 4, 2010 order.

IV.

We turn next to the State's cross-appeal from the judge's "due process" determination that the State should also be barred from producing testimony from Anderson describing her April 12, 2007 undercover visit. As the judge himself recognized, any testimony by Anderson describing her oral communication with defendant would not be "derived," N.J.S.A. 2A:156A-21, from the unlawfully obtained tape recording. That is because Anderson would have had the same oral conversation with defendant whether she had taped that conversation or not. Thus, any testimony by Anderson describing her conversation with defendant stands on its own and is not "derived" from the unlawful intercept.

The judge also correctly recognized that N.J.R.E. 803(b)(1) would permit Anderson to testify to the oral statements made by defendant. Nonetheless, the judge concluded that "due process considerations" required him to bar the State from presenting Anderson's testimony describing the April 12, 2007 undercover visit. That determination finds no support in any statute or reported decision and cannot be sustained. We therefore reverse the portion of the January 4, 2010 order that prohibited the State from making any reference at trial to the April 12, 2007 undercover visit.

V.

We turn to defendant's appeal of the portion of the January 4, 2010 order that denied his motion to suppress the intercepts of the May 2, June 7, June 26, July 13, August 3 and August 23, 2007 undercover visits. In so ruling, the judge reasoned that: 1) those six intercepts were not "derived" from the unlawful April 12, 2007 intercept because the State's investigation of defendant's prescribing of Percocet predated by several years the April 12, 2007 undercover visit and the six subsequent visits would therefore have occurred whether or not the April 12, 2007 visit had taken place; and 2) for the last five of those six visits, Anderson had attained the status of a regularly-appointed and full-time police officer and therefore was authorized by N.J.S.A. 2A:156A-4(b) to intercept a conversation to which she was a party without obtaining the prior approval of the Prosecutor. We address those conclusions sequentially.

We are satisfied, as was the judge, that the evidence obtained from the six undercover visits after April 12, 2007, was the product of a long-standing, multi-agency law enforcement investigation that had been ongoing since 2005. That investigation included: the information provided by defendant's former employee Cathy Mills, who graphically described fraudulent prescribing practices by defendant; the undercover visit to defendant's office by Investigator Landis on December 13, 2005; and the report from DEA to the CMCPO about defendant as early as September 2005. In light of that evidence, we have no occasion to question the judge's conclusion that the evidence in the last six intercepts was not "derived" from the April 12, 2007 undercover visit but was instead the culmination of a long-standing and wide-ranging investigation. Under those circumstances, the judge correctly determined that there was no basis for the suppression of those six intercepts.

Furthermore, the six intercepts after April 12, 2007 were separated from the first by "an independent and intervening event," which was "sufficient to contain the taint of the unlawful evidence." Worthy, supra, 141 N.J. at 389. Here, this intervening event was Prosecutor Taylor's April 18, 2007 authorization for consensual interceptions. While we recognize the Court in Worthy did not deem the subsequent prosecutorial authorization an intervening event that overcame the taint of the unlawful interceptions, the Court's holding was based upon the prosecutorial authorization being "entirely" based upon the illegally obtained communications. Id. at 388.

In this case, however, Prosecutor Taylor's authorization was based upon an investigation of defendant that preceded the April 12, 2007 communication by two years. In his request for this authorization, Hallett listed the information on which his request was based, including information received from the DEA in September 2005, as well as the information provided by Cathy Mills, defendant's former employee. Hallett did not reference Anderson's April 12, 2007 visit to defendant outside of stating that she was "a source of information and [was] acting as an agent for the Cape May County Prosecutor's Office." Based on Hallett's request, we are satisfied that Prosecutor Taylor's authorization was substantially based on information obtained during the long-standing investigation of defendant that preceded the April 12, 2007 communication. As such, the April 18, 2007 prosecutorial authorization qualifies as an intervening event under Worthy and contains the taint of the April 12, 2007 communication to that communication alone, making the subsequent communications admissible.

We likewise agree with the judge's determination that once Anderson attained the rank of a full-time and regularly-appointed police officer on May 24, 2007, she was authorized to intercept her conversations with defendant without obtaining the approval of the Prosecutor. N.J.S.A. 2A:156A-4(b). For that reason, all five intercepts occurring after that date possess a freestanding and independent authorization and are in no sense "derived" from the unlawful April 12, 2007 intercept.

We recognize that the May 2, 2007 intercept occurred before Anderson attained the rank of a full-time police officer on May 24, 2007. Nonetheless, we are satisfied, as we have already discussed, that all six of the intercepts after April 12, 2007, which obviously included the May 2, 2007 intercept, were the product not of the unlawful April 12, 2007 intercept, but instead were the product of a long-standing and well-established investigation that preexisted the unlawful April 12 intercept by a period of nearly two years. Thus, the May 2, 2007 intercept, although conducted before Anderson became a full-time police officer, was nonetheless lawful because it was not derived from the April 12 unlawful intercept. For all of those reasons, we affirm the judge's denial of defendant's motion to suppress the last six intercepts.

VI.

Affirmed on defendant's appeal.

 
Affirmed in part and reversed in part on the State's cross-appeal.

The record does not include a copy of the order that resulted from the October 22, 2009 hearing on the State's motion for reconsideration, nor have the parties specified the date of the resulting order; however, both sides agree that the result of the October 22, 2009 hearing is as we have described.

N.J.S.A. 2A:156A-8 specifies approximately forty crimes for which a judge may issue wiretap authorization when no party to the conversation consents to the intercept, including crimes such as murder, robbery, kidnapping, racketeering, unlawful sale of firearms and distribution of a controlled dangerous substance.

A "local unit" is a municipality that has established a regular police force. N.J.S.A. 40A:14-146.9(c).

(continued)

(continued)

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A-2761-09T4

August 19, 2010