People v. Doe

• Citation: 178 Misc.2d 908,680 N.Y.S.2d 920
• Parties: , 1998 N.Y. Slip Op. 98,661 The PEOPLE of the State of New York, Plaintiff, v. John DOE, Defendant.
• Decision Date: 12 November 1998
• Court: New York Supreme Court

Page 920

680 N.Y.S.2d 920

178 Misc.2d 908, 1998 N.Y. Slip Op. 98,661

The PEOPLE of the State of New York, Plaintiff, v. John DOE, Defendant.

Supreme Court, New York County.

Nov. 12, 1998.

Polstein, Ferrara, Dwyer & Speed, P.C., New York City (Anthony J. Ferrara of counsel), for defendant.

Dennis C. Vacco, Attorney-General, New York City (Robert Dublirer of counsel), for plaintiff.

RENA K. UVILLER, Justice.

Defendant has moved for dismissal of the indictment on the grounds that the Grand Jury proceedings were defective and that its integrity was impaired. CPL 210.20(1)(c); 210.35(5). This opinion elaborates upon the reasons for my earlier order, directing dismissal of the indictment, with leave to re-present to another Grand Jury.

The indictment charges defendant, a psychiatrist, with eighteen counts of Criminal Sale of a Prescription for a Controlled Substance, in violation of Penal Law 220.65. Each count relates to the alleged sale of a prescription for controlled substances (specifically, psychotropic medications) to "Alex Nieto," the alias of an undercover officer, posing as a patient, who visited defendant in his office on six separate occasions. Some of the prescriptions were for Mr. Nieto's "wife" who did not personally appear in defendant's office.

Defendant principally contends that the integrity of the Grand Jury proceedings was impaired by the prosecutor's failure to instruct the Grand Jury adequately, and by her failure to play for the Grand Jury the audio and video recordings made by the undercover on each office visit. Those tapes have been provided to defense counsel and transcripts of them to the Court in connection with the instant motion.

Those recorded conversations, the defendant asserts, demonstrate that he was acting in good faith and in the exercise of his professional judgment in prescribing the drugs; that the recordings reflect that defendant extensively counseled his "patient" on the dangers of addiction, urged him to enter a group therapy program, and implemented a gradual and steady withdrawal treatment plan; and that he was "entrapped" into issuing prescriptions for the absent "wife."

Because the undercover's testimony reasonably, albeit sketchily, summarized his encounters with defendant (as reflected in the transcripts of the recordings), the failure to play the tapes to the Grand Jury, in and of itself, might not have undermined the integrity of the proceedings. This omission was compounded, however, by the prosecutor's failure to provide adequate legal instructions regarding the gravamen of the crime, and her failure to respond appropriately to grand juror queries directed to that issue.

As defined by statute, and recited in the indictment, it is an essential element of the charged crime that the defendant knowingly sold the prescription for a controlled substance "unlawfully," that is, "other than in good faith in the course of his professional practice." Penal Law 220.65. Normally, a physician may, of course, dispense such prescriptions when treating patients. See, Public Health Law 3331(2). Such authority comports not only with statutory and regulatory authorization. It is consistent with the common understanding of what physicians are permitted to do.

It is dispensation "other than in good faith," that is a critical element, indeed the gravamen of the crime. Although the phrase is inherently ambiguous [See, People v. Dias, 197 A.D.2d 387, 602 N.Y.S.2d 353, "good faith requires the physician to have acted for a bona fide medical purpose."], it has been interpreted in the context of both the Penal Law and the Public Health Law.

Thus, other than good faith may be evinced by the physician's knowledge that the prescriptions or the drugs were to be resold, (People v. Pal, 56 A.D.2d 640, 391 N.Y.S.2d 702); by unusually brief or perfunctory patient visits, by dosages beyond that required for legitimate treatment, or payments that did not reflect normal fees for office visits (People v. Dias, 197 A.D.2d 387, 602 N.Y.S.2d 353); by an absence of patient symptoms (cf. In re David Ripton v. N.Y. State Department of Health, 85 A.D.2d 899, 446 N.Y.S.2d 732; People v. Pal, supra ); by knowledge, with various exceptions, that individuals to whom the prescriptions are issued are addicts or habitual users. (See, Matter of Koudouris v. Axelrod, 102 A.D.2d 954, 477 N.Y.S.2d 815; Public Health Law 3331(1); although prescriptions for addicts are permissible to treat acute withdrawal symptoms. Public Health Law § 3351). The failure to conduct a physical examination or issuance of a supply above the permissible maximum do not, in and of themselves, necessarily evince bad faith. People v. Pal, supra.

While a grand jury need not be instructed regarding elements of a crime with the same precision required for a petit jury, the prosecutor must nonetheless provide that body "with enough information to enable it intelligently to decide whether...