STATE OF NEW JERSEY v. PAOLA D'OTTAVIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0289-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAOLA D'OTTAVIO,

Defendant-Appellant.

____________________________

May 18, 2011

Submitted January 3, 2011 - Decided

Before Judges A.A. Rodr guez, Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 08-04-0069.

Charles E. Woolson, Jr., attorney for appellant.

Paula T. Dow, Attorney General, attorney

for respondent (Lisa Sarnoff Gochman,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

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.1 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 JURY DURING DELIBERATIONS.

II. THE [TRIAL] COURT IMPROPERLY CHARGED

THE JURY IN THAT IT DID NOT [CHARGE] THE THIRD[-]DEGREE OFFENSE OF HEALTH CARE CLAIMS FRAUD, N.J.S.A. 2C:21-4.3[b]. (Not Argued Below).

III. THE SENTENCE IMPOSED UPON

DEFENDANT . . . WAS EXCESSIVE.

IV. [DEFENDANT] WAS DENIED A FAIR TRIAL

BASED UPON PROSECUTORIAL MISCONDUCT DURING THE COURSE OF CLOSING ARGUMENT MAKING THE [sic] IMPROPER COMMENTS TO THE JURY AND IS ENTITLED TO A [NEW] TRIAL PURSUANT TO RULE 3:20.2

V. THE TRIAL COURT IMPROPERLY DENIED

DEFENDANT'S MOTION FOR [A] NEW TRIAL BASED UPON THE STATE'S FAILURE TO MAKE PROPER DISCOVERY.

I

We reject defendant's objection to the judge's response to a question posed by the deliberating jury. The question related only to the second mode of creating false prescriptions discussed above attaching a computer-generated label to a CVS prescription form that had no handwriting other than the date. The jury asked: "As per the label only scripts with Paola's handwriting, handwritten date only, Question, what was Paola's explanation on why her handwriting is on these fake scripts?"

The judge discussed the question with counsel at length and ultimately, with no objection from defense counsel, concluded that defendant had given no testimony that addressed the jury's question. Based on our review of defendant's testimony, we also conclude that defendant did not testify on the point at all. She denied preparing any forms with computer-generated labels and did not testify about the handwritten dates. Contrary to defendant's argument on appeal, that general denial of attaching computer-generated labels to prescription forms is not an "explanation on why her handwriting is on these fake scripts," which is what the jurors wanted to know. Accordingly, the judge did not err in directing the jurors that if they listened to defendant's entire testimony they "would not" get an answer.

II

The judge did not err by failing to charge the jury on third-degree health care claims fraud as a lesser-included offense of the second-degree crime. Defendant did not request that charge or object to its exclusion.

The Supreme Court recently summarized a trial judge's sua sponte obligation to charge a lesser offense as follows:

[W]hen the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge. State v. Sloane, 111 N.J. 293, 303 (1988) . . . . Only if the record clearly indicates a lesser-included charge that is, if the evidence is jumping off the page must the court give the required instruction. [State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).]

[State v. Denofa, 187 N.J. 24, 42 (2006)

(citations omitted).]

The evidence in this case did not warrant the lesser charge under that standard. "'Health care claims fraud' means making, or causing to be made, a false, fictitious, fraudulent, or misleading statement of material fact in . . . any record, bill, claim or other document, in writing, electronically or in any other form . . . to be submitted for payment or reimbursement for health care services." N.J.S.A. 2C:21-4.2. The difference between the second- and third-degree crimes is the actor's mental state knowingly for the second-degree and recklessly for the third-degree. Subsection h of N.J.S.A. 2C:21-4.3 explains:

[A] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

Recognizing the jurors' ability to accept portions of the State's and defendant's evidence, we cannot conclude that the crime of reckless health care claims fraud was clearly indicated. According to defendant, she had no reason to expect that any prescription she processed or filled was false. The State's version was that defendant was a knowing participant in a scheme involving false prescriptions. Nothing in the record suggests that defendant was aware of and consciously disregarded a risk that one or more of the prescriptions were false.

III

Defendant is not entitled to a new trial based on the conduct of the prosecuting attorney. That relief is appropriate only when "the conduct was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002); see State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). While we recognize that the prosecutor misstated the evidence when he said that a prescription written by a doctor was required to dispense Hydrocodone, the prosecutor's summation, like the State's evidence, was focused on defendant's actions regarding false prescriptions, not the fact that the prescriptions were taken by phone in violation of the law. Viewed in context, we conclude that the passing remark had no capacity to confuse or distract the jurors. We reject defendant's other objections to the prosecutor's conduct substantially for the reasons stated by Judge Garofolo in addressing defendant's motion for a new trial on this basis. Although the remaining objections are without sufficient merit to warrant any further discussion, R. 2:11-3(e)(2), we are constrained to caution defense counsel to check and double-check an allegation of prosecutorial misconduct and the citation to the record that the attorney believes supports it.3

IV

Defendant contends that she is entitled to a new trial because the State failed to disclose Guld's criminal history. In response, the State correctly notes that defendant cites no legal authority that supports her claim, which is based on a criminal record that discloses nothing other than convictions for petty offenses in New York well over twenty-five years before she testified at defendant's trial. Judge Garofolo addressed this issue on defendant's motion for a new trial, and we reject the claim on appeal substantially for the reasons he set forth on the August 7, 2009 record. We simply add that pursuant to N.J.R.E. 609, only convictions for a "crime" are admissible for purposes of impeachment and that evidence is properly excluded when the conviction is "remote." See State v. Hamilton, 193 N.J. 255, 256-57 (2008); see also Application of N.A., 218 N.J. Super. 547, 549 (App. Div. 1987) (explaining "that offenses punishable by more than [six] months imprisonment are regarded as crimes").

In a supplemental brief, filed with a leave of court granted on M-5648-09, defendant argues that she is entitled to a new trial because the verdict is against the weight of the evidence. It is not entirely clear that defendant complied with Rule 2:10-1 and raised this issue by way of motion for a new trial before Judge Garofolo, but it is clear that there was no "manifest denial of justice" given the direct and circumstantial evidence presented, which included the CVS records as well as testimony from Guld, Gatto, the handwriting expert, defendant's co-workers, defendant and the doctors and other customers whose names were used. State v. Cook, 179 N.J. 533, 565 (2004).

V

Defendant presents two arguments with respect to her sentence. She contends the presumption of imprisonment was overcome and that a consecutive sentence for the distribution charge was unwarranted.

Judge Garofolo met his obligation to explain the sentence as required by Rule 3:21-4(g) and the case law. State v. Miller, 205 N.J. 109, 129 (2011); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180 (2009); State v. Natale, 184 N.J. 458, 486 (2005). He also adhered to the Code's sentencing scheme as construed by the case law and guidelines for consecutive sentences provided in State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

The judge's compliance with those principles guiding sentencing discretion triggers limited appellate review. Cassady, supra, 198 N.J. at 181-82. We must affirm so long as the trial court's findings and balancing of the aggravating and mitigating factors and the Yarbough factors are "'supported by competent credible evidence in the record'" and the sentence does not shock the judicial conscience. Id. at 180-81 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)); see id. at 181-82 (discussing findings on Yarbough factors). The court's findings have the requisite support in the record.

Because this sentence is "a reasonable one in light of all the relevant factors considered by the [sentencing] court," id. at 181 (internal quotations omitted), we have no authority to disturb it.

VI

Defendant urges us to consider additional issues raised in supplement briefs. The State opposed her motions to file those briefs, and we reserved decision for resolution with this appeal. We address those motions here.

A

M-2380-10 was filed on December 14, 2010, eleven months after defendant filed her main brief, seven months after she filed her reply brief and three months after she filed a first supplemental brief. We now grant that motion and reject the arguments presented.

In this supplemental brief, defendant simply points out perceived discrepancies between the evidence presented to the grand and petit jurors and argues that they are likely to affect the outcome of the appeal.

Defendant notes that an April 16 credit card payment of a co-pay was erroneously correlated with an April 16 prescription by the prosecutor before the grand jury. At trial, however, the credit card payment was linked with a prescription processed on April 12 and dispensed on April 16. This discrepancy in date is of no discernible relevance, because the payment was connected with a false prescription at trial. The other discrepancies were highlighted for the jurors: a prescription lost between the grand jury proceeding and trial; a "phone-in" prescription in handwriting allegedly done by two different people; evidence of a customer who had difficulty picking up a prescription because CVS records reflected that she had already done so; the usual pill count for a Hydrocodone prescription; and "phone-in" prescriptions for Hydrocodone processed in the Northfield CVS after defendant transferred to the Egg Harbor store. Because all of this information was before the jury, the differences do not undermine the reliability of the verdict in any way. The verdict demonstrates that the jurors did not deem them significant.

B

M-3332-10 was filed on February 3, 2011. Defendant sought to supplement the record with a report prepared by a federal officer and provided to the defense in discovery that refers to other reports that were not provided in discovery. Finding no basis for concluding that relaxation of Rules 2:6-2 and 2:6-5 is warranted to prevent an injustice attributable to a discovery violation, R. 1:1-2, we deny this motion.

Affirmed.

1 The indictment charged health care fraud in four separate counts but the jurors were directed to consider those counts charging second-degree crimes as one. The second-degree crimes were based on claims for prescription medication delivered without a prescription that defendant billed electronically to Caremark/Advance PCS for two customers (counts one and two) to private insurers (count three) and to Medicaid (count four). Defendant did not object to the consolidation of counts at trial and does not argue that it was improper on appeal.

2 Defendant improperly supplemented this argument with additional allegations of impropriety on the part of the prosecutor in her reply brief. Over the State's objection, we dispose of these claims as well in our discussion of Point Four and with that disposition resolve the denial without prejudice of the State's motion to strike those portions of the reply brief.

3 We refer to an allegation in the reply brief that the prosecutor questioned defendant about a plea offer. The citation to the record does not support that assertion, and although we reviewed the entire cross-examination, we found no such question.