Jury Can Hear Most Covert Recordings of Alleged Pill-Pushing Doctor

COURT HOUSE — A jury hearing the case against a former North Wildwood doctor accused of over-prescribing painkillers will not be allowed to hear a recording of the initial incriminating encounter between the doctor and an undercover police officer, but will be permitted to hear testimony about the meeting.
On Aug. 19, the Appellate Division reversed a lower court’s determination that the jury couldn’t hear the recording or testimony about it. The two-judge panel also denied the doctor’s motion to have six other undercover recordings blocked from the jury.
In September 2005, the Drug Enforcement Administration (DEA) notified the Cape May County Prosecutor’s Office that it had opened an investigation into the over-prescribing of oxycodone (Percocet) by Dr. John Costino from his office at 404 Surf Ave.
Costino’s former office manager Cathy Mills told authorities that Costino was regularly prescribing painkillers to his patients without performing medical examinations.
“Patients were routinely instructed by defendant to come to a side door of the office where they would pay $75 in cash and receive a refill of their medication without a physical exam,” Mills stated in court documents.
The investigation continued for many months until April 12, 2007 when a Little Egg Harbor, Ocean County Class II officer working for the county Prosecutor went to Costino’s office with a tape recorder in her purse. She told Costino she was an exotic dancer and had no pain, but wanted something that would help her relax, noting that a friend had referred her to him. She said she was hoping Costino would give her a Percocet prescription.
According to the record, Costino merely took a history from Anderson, listened to her heart with a stethoscope and provided her with a prescription for 30 7.5-milligram Percocet tablets.
Over the next few months, the undercover officer received at least six more prescriptions for increasingly stronger medication with no medical exams taking place. Each time she made covert recordings of the appointments with Costino. On two occasions another undercover officer joined the appointments and received similar prescriptions.
The officer also used a Blue Cross/Blue Shield card with a fraudulent name that determined that Costino was billing the insurance company for services not rendered.
In August 2008, a Grand Jury returned a 26-count indictment against Costino, who was Costino was charged with nine counts of third-degree drug distribution, one count of second-degree distribution, nine counts of distribution within 1,000 feet of school property, and seven counts of health care claims fraud. His medical license was revoked in July 2009.
On July 29, 2009, a judge granted Costino’s motion to suppress the tape recordings of all seven visits and barred the state from eliciting at trial any testimony regarding the covert recordings. The judge found that the initial meeting was flawed because it was conducted by a Class II officer and had not been approved by county Prosecutor Robert Taylor.
The record indicated that the judge was “reasoning that those recordings were the fruit of the unlawfully obtained intercept of the April 12, 2007 oral communication.”
Taylor later informed the judge that “prior 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.”
The judge then barred the jury hearing the initial recording or testimony about it, but allowed the subsequent recordings.
“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,” the appellate judges reasoned. “Under those circumstances, the judge correctly determined that there was no basis for the suppression of those six intercepts.”